EXHIBIT 2.1
PURCHASE AND SALE AGREEMENT
PIPELINE SYSTEM
This Purchase and Sale Agreement (the "Agreement") is made and entered into
effective this 21st day of January, 2005, (the "Effective Date") by and between
MOBIL PIPE LINE COMPANY, a Delaware corporation ("MPLCO") and BUCKEYE PIPE LINE
TRANSPORTATION LLC, a Delaware limited liability company ("BUYER"). MPLCO and
BUYER are hereinafter sometimes referred to individually as "Party" or
collectively as "Parties":
W I T N E S S E T H
WHEREAS, MPLCO desires to sell the real and personal property and
related rights described in Section 2 below and BUYER wishes to purchase the
such real and personal property and the related rights from MPLCO on the terms
and conditions set forth below,
NOW, THEREFORE, for the consideration hereinafter specified, MPLCO and
BUYER agree as follows:
1. Definitions. The following terms shall have the meaning set forth below
for all purposes of this Agreement:
1.1 "Affiliate" means, with respect to a Party, any individual or
legal business entity that, directly or indirectly, controls,
is controlled by, or is under common control with, such Party.
The term "control" (including the terms "controlled by" and
"under common control with") as used in the preceding sentence
means the possession, directly or indirectly, of the power to
direct or cause the direction of management and policies.
1.2 "Agreement" has the meaning specified in the Preamble.
1.3 "Ancon" means Ancon Insurance Company, Inc., a Vermont
corporation (which is EMC's wholly-owned captive insurer).
1.4 "Acquired Employee" has the meaning specified in Exhibit H.
1.5 "Assets" has the meaning specified in Section 2.
1.6 "Assumed Environmental Liabilities" has the meaning specified
in Section 7(D).
1.7 "Authorized Representative" means any employee, agent,
representative, consultant, contractor, or subcontractor.
1.8 "Baseline Condition" has the meaning specified in Section
7(B).
1.9 "BUYER" has the meaning specified in the Preamble.
1.10 "BUYER Indemnitor" has the meaning specified in Section
13(A)(1).
1.11 "BUYER Indemnitee" has the meaning specified in Section
13(A)(3).
1.12 "BUYER's Group" has the meaning specified in Exhibit D.
1.13 "CERCLA" means the Comprehensive Environmental Response,
Compensation, and Liability Act (42 U.S.C.Section 9601 et
seq.).
1.14 "Claim" means all liability, costs (including without
limitation any attorney fees and costs), expenses, claims,
demands, fines, penalties, causes of action or other
obligation of whatever nature, whether under express or
implied contract, at common law or under any applicable law,
rule or regulation, including without limitation applicable
Environmental Laws.
1.15 "Closing" has the meaning specified in Section 14(A).
1.16 "Closing Date" has the meaning specified in Section 14(A).
1.17 "Consent" has the meaning specified in Section 5(D).
1.18 "Damages" means any and all obligations, liabilities, damages
(including, without limitation, physical damage to real or
personal property or natural resources), fines, liens,
penalties, deficiencies, losses, judgments, settlements,
personal injuries (including, without limitation, injuries or
death arising from exposure to Regulated Substances), costs
and expenses (including, without limitation, accountants'
fees, attorneys' fees, fees of engineers, health, safety,
environmental and other outside consultants and investigators,
and reasonable court costs, appellate costs, and bonding
fees), whether based in tort, contract or any local, state or
federal law, common law, statute, ordinance or regulation,
whether legal or equitable, past, present or future,
ascertained or unascertained, known or unknown, suspected or
unsuspected, absolute or contingent, liquidated or
unliquidated, choate or inchoate or otherwise.
1.19 "DHHS" has the meaning specified in Exhibit D.
1.20 "DOT" has the meaning specified in Exhibit D.
1.21 "Easements" has the meaning specified in Section 2(D).
1.22 "Effective Date" has the meaning specified in the preamble to
this Agreement.
1.23 "Eligible Employee" has the meaning specified in Exhibit H.
1.24 "EMC" means Exxon Mobil Corporation.
1.25 "EMPCo" means ExxonMobil Pipeline Company.
1.26 "EMOC" means ExxonMobil Oil Corporation (formerly known as
Mobil Oil Corporation).
1.27 "EMOC Terminals" means the petroleum products terminals owned
by EMOC and located in Rochester, New York, Binghamton, New
York, Buffalo, New York and Malvern, Pennsylvania.
1.28 "Environmental Condition" means the existence of Regulated
Substances in or on the soil, surface water, or groundwater
at, on or under any of the Pipeline Assets, or migrating from
any of the Pipeline Assets to a contiguous property or
properties to the extent the levels of any such Regulated
Substances exceed naturally occurring background levels in
such areas.
1.29 "Environmental Assessment" has the meaning specified in
Section 7(A).
1.30 "Environmental Documents" means those documents that are in
MPLCO's possession and that are (1) to the best of MPLCO's
Knowledge, material with respect to Environmental Conditions
at the Pipeline Assets and (2) listed on Exhibit J.
1.31 "Environmental Laws" means any and all applicable common law,
statutes and regulations, of the State of New York, the State
of New Jersey and the Commonwealth of Pennsylvania, as
applicable, and local and county areas concerning the
environment, preservation or reclamation of natural resources,
natural resource damages, human health and safety, prevention
or control of spills or pollution, or the management
(including, without limitation, generation, treatment,
storage, transportation, arrangement for transport, disposal,
arrangement for disposal, or other handling), Release or
threatened Release of Regulated Substances, including without
limitation, CERCLA, the Hazardous Material Transportation
Authorization Act of 1994 (49 U.S.C.Section 5101 et seq.), the
Solid Waste Disposal Act (42 U.S.C.Section 6901 et seq.)
(including the Resource Conservation and Recovery Act of 1976,
as amended), the Clean Water Act (33 U.S.C.Section 1251 et
seq.), the Oil Pollution Act of 1990 (33 U.S.C.Section 2701 et
seq.), the Clean Air Act (42 U.S.C.Section 7401 et seq.), the
Toxic Substances Control Act (15 U.S.C.Section 2601 et seq.),
the Safe Drinking Water Act (42 U.S.C. Section 300(f) et
seq.), the Emergency Planning and Right-To-Know Act of 1986
(42 U.S.C.Section 11101 et seq.), the Endangered Species Act
of 1973 (16 U.S.C.Section 1531 et seq.), the Lead-Based Paint
Exposure Reduction Act (15 U.S.C.Section 2681 et seq.), and
the National Environmental Policy Act of 1969 (42
U.S.C.Section 4321 et seq.), and all State of New York, State
of New Jersey and Commonwealth of Pennsylvania, as applicable,
county and local laws of a similar nature to federal law, and
the rules and regulations promulgated thereunder, each as
amended and, unless otherwise provided in this Appendix, in
effect as of the Closing Date.
1.32 "Environmental Liabilities" means any Damages or Proceedings
(whether incurred, existing or first occurring on, before or
after the Closing Date) relating to or arising out of
ownership or operation of the Pipeline Assets (whether on,
before or after the Closing Date) pursuant to any applicable
Environmental Laws as in effect at any time, including without
limitation: (i) any Third Party Environmental Claim; (ii) any
Governmental Environmental Enforcement Action; or (iii) any
Remediation Activities.
1.33 "Environmental Permits" shall mean those permits,
authorizations, approvals, registrations, certificates,
orders, waivers, variances or other approvals and licenses
issued by or required to be filed with any Governmental
Authority under any applicable Environmental Law that are in
the name of Seller, related solely to any portion of the
Pipeline Assets, and shown on Exhibit M.
1.34 "Evaluative Information" has the meaning defined in the
Confidentiality Agreement.
1.35 "Excluded Assets" has the meaning specified in Section 3(A).
1.36 "ExxonMobil/Ancon Policy" means any property and/or liability
insurance policies issued to MPLCO, EMC or any of their
divisions or Affiliates, including without limitation, any
property and/or liability coverage policies issued to MPLCO,
EMC or any of their divisions or Affiliates by Ancon, or its
predecessor companies or by a locally admitted insurer which
are reinsured by Ancon.
1.37 "Facilities" has the meaning specified in Section 2(B).
1.38 "FERC" has the meaning specified in Section 14(D).
1.39 "Governmental Authority" or "Governmental Authorities" means
any federal, state or local governmental authority,
administrative agency, regulatory body, board, commission,
judicial body or other body having jurisdiction over the
matter.
1.40 "Governmental Environmental Enforcement Action" means any
order, settlement agreement, consent decree, directive, notice
of violation, notice of enforcement, letter of notice, notice
of noncompliance, corrective action, or similar type of legal
requirement or instrument that is issued by, entered into
with, or otherwise required by a Governmental Authority with
respect to an actual or alleged noncompliance under applicable
Environmental Laws.
1.41 "Hess" means the Amerada Hess Corporation.
1.42 "Independent Consideration" has the meaning specified in
Section 4.
1.43 "Knowledge" means the knowledge of designated company's
current supervisory employees who, in the normal scope of
their employment would have knowledge of the matter.
1.44 "Malvern Storage Facility" has the meaning specified in
Section 2(2).
1.45 "Manheim Litigation" has the meaning specified in Exhibit K.
1.46 "Material Contracts" means all material contracts to which
MPLCO or one of its Affiliates is a party relating solely to
the Pipeline Assets, which contracts are described in Exhibit
A-3. The term "Material Contracts" does not include any
Revenue Generating Contracts.
1.47 "Material Defect" has the meaning set forth in
Section 12."MPLCO" has the meaning specified in the Preamble.
1.48 "MPLCO Indemnitee" has the meaning specified in Section
13(A)(1).
1.49 "MPLCO Information" has the meaning specified in Section 10.
1.50 "MPLCO Tariff Rates" has the meaning specified in Section
14(D).
1.51 "NIDA" has the meaning specified in Exhibit D.
1.52 "North Line" has the meaning specified in Section 2(A)(1)(v).
1.53 "Off-Site" means those areas contiguous to the Real Property
or any interest therein to be conveyed under this Agreement
and not considered On-Site.
1.54 "Off-Site Disposal Activities" means any off-site
transportation, storage, disposal, or treatment, or any
arrangement for off-site transportation, storage, disposal, or
treatment of any Regulated Substance; provided however, that
the term "Off-Site Disposal Activities" shall not include (i)
the Off-Site portion of an Environmental Condition that has
migrated from the Pipeline Assets, (ii) Environmental
Conditions on Off-Site contiguous property under terminal dock
lines and dock facilities at the Pipeline Assets, if any, and
(iii) Environmental Conditions of waterways extending beyond
any of the Pipeline Assets' shoreline, if any.
1.55 "Off-Site Remediation Activities" means any Remediation
Activities with respect to the Pipeline Assets that relate to
Off-Site Disposal Activities.
1.56 On-Site" means any of the Real Property or any interest
therein to be conveyed under this Agreement.
1.57 "Order" means any current judgment, order, settlement
agreement, writ, injunction or decree of any Governmental
Authority having jurisdiction over the matter and still in
effect as of the Closing Date.
1.58 "Parent Company" means a company or companies having a
Controlling Interest in a designated company.
1.59 "Party" has the meaning specified in the Preamble.
1.60 "Paulsboro System" has the meaning specified in Section
(2)(A)(1).
1.61 "Pipeline Assets" means all of the Assets other than the Van
Buren Terminal and all other related assets described in
Appendix 1.
1.62 "Post-Closing Activities Letter Agreement" means the letter
agreement between BUYER, MPLCO and/or their respective
Affiliates attached as Exhibit T with respect to the
activities described in Section 35.
1.63 "Proceedings" means any actions, causes of action, written
demands, written claims, suits, investigations, and any
appeals therefrom.
1.64 "Property Taxes" has the meaning specified in Section 16.
1.65 "Purchase Price" has the meaning specified in Section 4(C).
1.66 "Purchase Price Adjustment" has the meaning specified in
Section 4(B).
1.67 "PURTA" means Public Utility Realty Taxes.
1.68 "Real Property" has the meaning specified in Section 2(C).
1.69 "Regulated Substance" means any (a) chemical, substance,
material, or waste that is designated, classified, or
regulated as "industrial waste," "hazardous waste," "hazardous
material," "hazardous substance," "toxic substance," or words
of similar import, under any applicable Environmental Law; (b)
petroleum, petroleum hydrocarbons, petroleum products,
petroleum substances, crude oil, and components, fractions,
derivatives, or by-products thereof; (c) asbestos or
asbestos-containing material (regardless of whether in a
friable or non-friable condition), or polychlorinated
biphenyls; and (d) substance that, whether by its nature or
its use, is subject to regulation under any applicable
Environmental Law in effect at that time or for which a
Governmental Authority requires Remediation Activities with
respect to any of the Pipeline Assets.
1.70 "Related Purchase Agreement" means any of the following
agreements: (i) the Terminal Purchase and Sales Agreement
between EMOC and Buckeye Terminals, LLC of even date herewith
for the petroleum products terminal located in Buffalo, New
York, and (ii) the Terminal Purchase and Sales Agreement
between EMOC and Buckeye Terminals, LLC of even date herewith
for the petroleum products terminals located in Malvern,
Pennsylvania, Binghamton, New York, and Rochester, New York.
1.71 "Release" shall have the meaning specified in CERCLA;
provided, however, that, to the extent the Environmental Laws
in effect at any time after the Closing Date establish a
meaning for "Release" that is broader than that specified in
CERCLA, such broader meaning shall apply to any "Release"
occurring after Closing.
1.72 "Remediation Activities" means any investigation, study,
assessment, testing, monitoring, containment, removal,
disposal, closure, corrective action, remediation (regardless
of whether active or passive), natural attenuation,
bioremediation, response, cleanup or abatement, whether
On-Site or Off-Site, of an Environmental Condition to
standards required by applicable Environmental Laws in effect
at such time or as required by an appropriate Governmental
Authority for property used for continued bulk petroleum
storage and distribution.
1.73 "Retained Environmental Liability" has the meaning specified
in Section 7(C).
1.74 "Revenue Generating Contracts" means all contracts to which
MPLCO or one of its Affiliates is a party relating to the
Assets and pursuant to which MPLCO generates income or revenue
from a third party, including, without limitation, terminaling
or throughput agreements and exchange agreements.
1.75 "Schedule of Exhibits" has the meaning specified in Section
22.
1.76 "Storage Line" has the meaning specified in Section
2(A)(1)(iii).
1.77 "Sun" means Sun Company, Inc.
1.78 "Sun Throughput Agreement" means that certain throughput
agreement dated October 26, 1998 between MPLCO, Hess, EMOC and
Sun for the Van Buren Terminal.
1.79 "Tariff Letter Agreement" means the letter agreement between
BUYER, MPLCO and/or their respective Affiliates attached as
Exhibit V with respect to the matters described therein.
1.80 "Third Party" means any individual or legal business entity
other than: (i) a Party; (ii) a Party's Affiliates; (iii) a
Party's Authorized Representatives; (iv) employees, officers,
directors, agents and representatives and all successors of a
Party and its Affiliates; and, (v) a Party's permitted
assigns.
1.81 "Third Party Environmental Claim" means a Proceeding by any
Third Party alleging Damages relating to or arising out of
exposure to, or Off-Site migration of, a Regulated Substance
(including, without limitation, Damages for Proceedings
arising under applicable Environmental Laws in connection with
an Environmental Condition and Damages for Remediation
Activities undertaken by a Third Party at its property).
Notwithstanding anything to the contrary in this Agreement, to
the extent that Remediation Activities are required by
Governmental Entities as a result of a Third Party
Environmental Claim, such Remediation Activities shall be
governed by the provisions under this Agreement dealing with
Remediation Activities.
1.82 "Van Buren Terminal" has the meaning specified in Section
2(G).
1.83 "West Line" has the meaning specified in Section 2(A)(1)(iv).
2. Purchase and Sale. Subject to the terms and conditions of this
Agreement, MPLCO agrees to sell and BUYER agrees to buy all of MPLCO's
right, title and interest in the following (collectively the "Assets"):
(A) (1) The MPLCO refined products pipeline systems originating in
Paulsboro New Jersey and having delivery points in New Jersey,
Pennsylvania, and New York, collectively described as the
"Paulsboro System" and more specifically described as follows:
(i) The Paulsboro to Colonial System consisting of
approximately 2160 feet of 12-inch diameter pipe
extending from the Valero Paulsboro Refinery in
Gloucester County, New Jersey to Colonial Pipeline
Junction in Gloucester County, New Jersey;
(ii) The Paulsboro to Philadelphia Airport jet system
consisting of approximately 2.64 miles of 8-inch
diameter pipe extending from MPLCO's Paulsboro
Station to the Airport Service International Group
Terminal located at the Philadelphia Airport in
Delaware County, Pennsylvania;
(iii) The Paulsboro to Malvern System ("Storage Line"),
consisting of approximately 23.7 miles of 12-inch
diameter pipe and approximately 1.07 miles of 10-inch
diameter pipe originating from MPLCO's Paulsboro
Station in Gloucester County, New Jersey and
extending to MPLCO's Malvern Station and storage
tanks in Chester County, Pennsylvania;
(iv) The Malvern to Harrisburg System ("West Line"),
consisting of approximately 42.47 miles of 10-inch
diameter pipe and approximately 27.08 miles of 8-inch
diameter pipe and approximately 5.5 miles of 4-inch
diameter
pipe originating from MPLCO's Malvern Station in
Chester County, Pennsylvania and extending to two
Petroleum Products Terminals in Dauphin County,
Pennsylvania and one Petroleum Products Terminal in
Lancaster County, Pennsylvania;
(v) The Malvern to New York System ("North Line"),
consisting of approximately 154.07 miles of 8-inch
diameter pipe and approximately 222.36 miles of
6-inch diameter pipe originating from MPLCO's Malvern
Station in Chester County, Pennsylvania and extending
to terminals in Lehigh and Berks County, Pennsylvania
and Broome, Erie, Monroe, and Onondaga Counties in
New York; and
(vi) Approximately 50 miles of idle pipe of various
diameters, to various destinations as listed in
Exhibit I; and
(2) MPLCO's Malvern Station and storage tanks ("Malvern
Storage Facility") in the upper yard at the MPLCO petroleum
products terminal in Chester County, Pennsylvania as described
on Exhibit A-2; and
(B) All of the assets as listed in Section 2(A) above as more
particularly described in Exhibit A-1 attached hereto and made
a part hereof, together with attached valves and fittings, and
all supplies, spare parts, tools and equipment used solely in
connection with such assets and the Malvern proving trailer
(the "Facilities");
(C) All of MPLCO's real property related to the Facilities and
owned in fee, listed in Exhibit A-2 (the "Real Property"),
which shall be conveyed to BUYER pursuant to the statutory
Deed without Warranty to be mutually agreed to by BUYER and
MPLCO as a condition to Closing;
(D) The easements, and/or right of way agreements, and to the
extent assignable, those land-use and water crossing licenses
or permits and governmental authorizations relating to the
Facilities, listed in Exhibit B hereto (collectively the
"Easements"). Where MPLCO is retaining a pipeline or pipelines
covered by an Easement, only the portions of the Easements
needed for pipelines being transferred will be assigned to
BUYER;
(E) MPLCO's right-of-way files and Department of Transportation
files, and other historical books and records, pertaining to
the Easements and the Facilities, subject to MPLCO's right to
retain records, files and other data deemed necessary or
required for MPLCO's compliance with applicable regulations or
which pertain to MPLCO facilities not included in the Assets
or which are proprietary to MPLCO;
(F) All Material Contracts (and all of MPLCO's rights and
obligations thereunder) to the extent such contracts are
assignable; and
(G) MPLCO's 50% undivided interest in the petroleum products
terminal and all related facilities (the "Van Buren Terminal")
in Van Buren, New York and the Terminal Operating Agreement
for the Van Buren Terminal dated November __, 1997 among,
EMOC, Hess and MPLCO, more particularly described in Appendix
1 attached hereto. The terms and conditions of this Agreement
shall apply to the sale to BUYER of MPLCO's interest in the
Van Buren Terminal, as supplemented or modified by the
provisions of Appendix 1 hereto. To the extent there is a
conflict
between the terms and conditions set forth in Appendix 1 with
respect to the Van Buren Terminal and the terms and conditions
set forth in this Agreement, the terms and conditions set
forth in Appendix 1 shall govern.
3. Exclusions.
(A) Except as specifically provided in Exhibit A, the Assets do
not include any of the following assets (collectively, the
"Excluded Assets"):
(1) vehicles (excluding the Malvern prover trailer),
boats, tools, warehouse stock, equipment or materials
temporarily located on the property where any of the
Assets are located or any inventory, equipment,
materials, pipelines, fixtures or interests owned by
any person or entity other than MPLCO; and
(2) any interest in any insurance or bonds maintained by
or on behalf of MPLCO or ExxonMobil Corporation, or
any of their divisions or Affiliates . No claims
regarding any matter whatsoever, whether or not
arising from events occurring prior to Closing, shall
be made by BUYER, its successors or assigns, against
or with respect to any insurance policy covering the
assets or operations of MPLCO, any other Mobil entity
insurance policy or ExxonMobil/Ancon Policy
regardless of their date of issuance. Accordingly,
BUYER, individually and on behalf of its successors
and assigns, does hereby disclaim any right or
interest under any insurance policy covering the
assets or operations of MPLCO, any other Mobil entity
insurance policies or such ExxonMobil/Ancon Policies
generally and specifically with regard to the Assets
or any claims associated with the Assets.
(B) BUYER is not assuming and shall not be responsible for any
liabilities, costs or expenses arising out of or associated
with the litigations set forth on Exhibit K.
(C) This Agreement does not license or authorize BUYER to use or
display the "Mobil", "Exxon" or "Esso" names or any trademark
owned by MPLCO, EMC, or any of their Affiliates and BUYER
shall, at its expense, remove all signs and markings at or on
the Assets which indicate that they were ever owned or
operated by MPLCO, EMC or any of their Affiliates and return
such signs to MPLCO. BUYER shall remove all signs and markings
located at or on the Assets within sixty (60) days after
Closing.
4. Purchase Price.
(A) The total monetary consideration to be paid for the Assets
shall be ONE HUNDRED FIFTY-SIX MILLION TWO HUNDRED THOUSAND
AND NO/100 DOLLARS ($156,200,000) (the "Purchase Price") cash
or other immediately available funds in MPLCO's account. The
Purchase Price may be adjusted in accordance with Sections
14(A) and 16 of this Agreement. As evidence of good faith,
BUYER has deposited or will deposit with MPLCO on the
Effective Date of this Agreement the amount of FIVE HUNDRED
AND NO/100 DOLLARS ($500.00) (the "Independent
Consideration"). The Independent Consideration shall be in
addition to and independent of any other consideration
provided under this Agreement, shall be non-refundable and
shall be retained by MPLCO under all circumstances. The
Parties acknowledge the sufficiency of the Independent
Consideration to support this Agreement.
(B) Prior to the Closing, the Parties shall agree in good faith to
finalize the allocation of the Purchase Price for tax
accounting purposes in accordance with the form set forth in
Exhibit A-4. BUYER and MPLCO agree that they will not take
(and will not permit any Affiliate to take), for income tax
purposes, any position inconsistent with the allocation agreed
to by the Parties.
5. MPLCO's Representations and Warranties.
(A) EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS AGREEMENT, (i)
MPLCO WILL SELL THE ASSETS TO BUYER ON AN AS-IS, WHERE-IS AND
WITH ALL FAULTS BASIS, (ii) MPLCO MAKES NO REPRESENTATIONS OR
EXPRESS OR IMPLIED WARRANTIES WITH RESPECT TO THE ASSETS, and
(iii) MPLCO MAKES NO WARRANTY OR REPRESENTATION, EXPRESS OR
IMPLIED, AS TO THE ACCURACY OR COMPLETENESS OF ANY FILES,
RECORDS, DATA, INFORMATION, OR MATERIALS HERETOFORE OR
HEREAFTER FURNISHED BUYER IN CONNECTION WITH THE ASSETS AND
ANY RELIANCE ON OR USE OF THE SAME SHALL BE AT BUYER'S SOLE
RISK. BUYER EXPRESSLY WAIVES THE PROVISIONS OF CHAPTER XVII,
SUBCHAPTER E, SECTIONS 17.41 THROUGH 17.63, INCLUSIVE (OTHER
THAN SECTION 17.555, WHICH IS NOT WAIVED), VERNON'S TEXAS CODE
ANNOTATED, BUSINESS AND COMMERCE CODE (THE "DECEPTIVE TRADE
PRACTICES - CONSUMER PROTECTION ACT" as well as the provisions
of any similar law of any other state having jurisdiction over
any Party hereto or the Assets).
(B) MPLCO is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware and is
duly qualified to carry on its business in the State of New
York, the State of New Jersey and the Commonwealth of
Pennsylvania.
(C) MPLCO has the corporate power and authority to execute and
deliver this Agreement and each agreement and instrument to be
delivered by MPLCO pursuant hereto, and to carry out its
obligations hereunder.
(D) Delivery and performance of this Agreement and each agreement
and instrument to be delivered pursuant hereto by MPLCO, and
the consummation of the transactions provided for hereby (a)
have been duly authorized and approved by all requisite
corporate action of MPLCO and no other corporate act or
proceeding on the part of MPLCO or its shareholders is
necessary to authorize the execution, delivery or performance
of this Agreement, and (b) do not and will not (x) conflict
with or violate any provision of MPLCO's Certificate of
Incorporation or Bylaws, or (y) violate or breach any law or
Order applicable to MPLCO or its properties or assets,
including the Assets, and this Agreement is a legal, valid,
binding and enforceable obligation of MPLCO, except as may be
limited by bankruptcy or other laws of such general
application affecting creditors' rights generally.
(E) No consent, approval, or notices of or to any other person
("Consent") is required with respect to MPLCO in connection
with the execution, delivery or enforceability of this
Agreement or the consummation of the transactions with respect
to the Pipeline Assets provided for hereby other than (i)
those for which any adverse consequences arising out of the
failure to obtain such Consent or to make such filing are
immaterial, individually and in the aggregate, to the Pipeline
Assets, (ii)
those required for the transfer of the Easements, if any, and
(iii) filings made under the Hart-Scott-Rodino Antitrust
Improvements Act of 1976, as amended.
(F) MPLCO has not incurred any obligation or liability, contingent
or otherwise, for brokers' or finders' fees in connection with
the transactions contemplated by this Agreement for which
BUYER shall have any responsibility or liability. MPLCO agrees
to pay and to indemnify fully, hold harmless and defend BUYER
and its Affiliates from and against, and pay, any claims by
any person alleging a right to a broker's or finder's fee
based upon any actions of MPLCO or its Affiliates in
connection with these transactions.
(G) Except as set forth in Exhibit K, there is no suit, action,
claim, arbitration, administrative or legal or other
proceeding or governmental investigation pending or, to
MPLCO's Knowledge, threatened against or related to the
Pipeline Assets. Except as set forth in Exhibit L, there is no
Order in effect relating specifically to the Pipeline Assets.
(H) Exhibit M lists all material Environmental Permits in effect
with respect to the Pipeline Assets on the date of this
Agreement. Except as disclosed on Exhibit M, to MPLCO's
Knowledge, neither MPLCO nor its Affiliates has received any
notice of any claim or default relating to such material
Environmental Permits. To MPLCO's Knowledge, all material
Environmental Permits listed in Exhibit M are valid and in
full force and effect and the permit holder is in compliance
in all material respects therewith.
(I) MPLCO has delivered to BUYER true and correct copies of all
Material Contracts. The Material Contracts have not been
modified except as provided in amendments delivered to BUYER.
Neither MPLCO nor, to MPLCO's Knowledge, any other party to
the Material Contracts, is in breach or default thereunder.
Except as disclosed in Exhibit A-3, under the terms of the
Material Contracts, the Material Contracts may be assigned to
and assumed by BUYER without penalty or expense.
(J) Except (a) to the extent, if any, disclosed on Exhibit K, (b)
as to any matter with respect to which MPLCO has agreed to be
responsible for or indemnify BUYER in Article 7, and (c) as to
any matter relating to, arising out of, or resulting in
Remediation Activities in connection with the Pipeline Assets,
to MPLCO's Knowledge, MPLCO's ownership, use and operation of
the Pipeline Assets as of the Closing Date will be in
compliance in all material respects with all applicable
federal, state and local laws, rules, regulations and orders
(including but not limited to, all applicable Environmental
Laws) in effect and requiring compliance as of the Closing
Date and MPLCO has not received notice from any Government
Authority asserting any act of non-compliance.
(K) MPLCO has paid prior to the Closing Date all Property Taxes
due and payable on or before the Closing Date assessed against
the Pipeline Assets for all taxable years or taxable periods
prior to the Closing Date (including portions of taxable years
or periods with respect to which Taxes are due and payable on
or before the Closing Date).
(L) No action, suit proceeding or claim is pending or to MPLCO's
Knowledge threatened against MPLCO seeking to restrain or
prohibit this Agreement or the transactions
contemplated hereby, or to obtain damages, a discovery order
or other relief in connection with this Agreement or the
transactions contemplated hereby.
6. BUYER's Representations and Warranties.
(A) BUYER REPRESENTS AND WARRANTS TO MPLCO THAT BUYER IS ACQUIRING
THE ASSETS FOR ITS OWN BENEFIT AND ACCOUNT AND NOT WITH THE
INTENT OF DISTRIBUTING FRACTIONAL UNDIVIDED INTERESTS THEREOF
SUCH AS WOULD BE SUBJECT TO REGULATION BY FEDERAL OR STATE
SECURITIES LAWS.
(B) BUYER REPRESENTS THAT BY REASON OF BUYER'S KNOWLEDGE AND
EXPERIENCE IN THE EVALUATION, ACQUISITION, AND OPERATION OF
SIMILAR PROPERTIES, BUYER HAS EVALUATED THE MERITS AND RISKS
OF PURCHASING THE ASSETS AND HAS FORMED AN OPINION BASED
SOLELY UPON BUYER'S KNOWLEDGE AND EXPERIENCE AND, EXCEPT AS
EXPRESSLY PROVIDED IN THIS AGREEMENT, NOT UPON ANY
REPRESENTATIONS OR WARRANTIES BY MPLCO WITH RESPECT TO THE
ASSETS OR AS TO THE ACCURACY OR COMPLETENESS OF ANY FILES,
RECORDS, DATA, INFORMATION, OR MATERIALS HERETOFORE OR
HEREAFTER FURNISHED TO BUYER IN CONNECTION WITH THE ASSETS,
AND ANY RELIANCE ON OR USE OF THE SAME HAS BEEN AND WILL BE AT
BUYER'S SOLE RISK.
(C) BUYER REPRESENTS THAT BUYER HAS MADE ALL INVESTIGATION
NECESSARY TO DETERMINE THE ENVIRONMENTAL AND PHYSICAL
CONDITION OF THE FACILITIES AND THE PREMISES COVERED BY THE
EASEMENTS, AND ALL OTHER INVESTIGATION NECESSARY TO PURCHASE
THE ASSETS.
(D) BUYER is a limited liability company duly organized, validly
existing and in good standing under the laws of the State of
Delaware, and is duly qualified to conduct business in the
State of New York, State of New Jersey and the Commonwealth of
Pennsylvania.
(E) BUYER has the limited liability power and authority to execute
and deliver this Agreement and each agreement and instrument
to be delivered by BUYER pursuant hereto, and to carry out its
obligations hereunder. The execution, delivery and performance
of this Agreement and each agreement and instrument to be
delivered pursuant hereto by BUYER and the consummation of the
transactions provided for hereby have been duly authorized and
approved by all requisite limited liability action of BUYER
and no other limited liability act or proceeding on the part
of BUYER or its Affiliates or members is necessary to
authorize the execution, delivery or performance of this
Agreement and this Agreement is a legal, valid, binding and
enforceable obligation of BUYER, except as may be limited by
bankruptcy or other laws of such general application affecting
creditor's rights generally.
(F) No Consent or filing is required with respect to BUYER or any
of its Affiliates in connection with the execution, delivery
or enforceability of this Agreement or the consummation of the
transactions provided for hereby, other than (i) those for
which any adverse consequences arising out of the failure to
obtain such Consent
are immaterial, individually and in the aggregate, to the
purchase and sale of the Assets, and (ii) filings made under
the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as
amended.
(G) The execution and delivery of this Agreement and the
consummation of the transactions provided for hereby does not
violate any other agreement, contract, or instrument to which
BUYER is subject or is a party.
(H) No action, suit, proceeding or claim is pending or to BUYER's
Knowledge threatened against BUYER seeking to restrain or
prohibit this Agreement or the transactions contemplated
hereby, or to obtain damages, a discovery order or other
relief in connection with this Agreement or the transactions
contemplated hereby.
(I) BUYER has not incurred any obligation or liability, contingent
or otherwise, for brokers' or finders' fees in connection with
the transactions contemplated by this Agreement for which
MPLCO shall have any responsibility or liability. BUYER agrees
to pay and to indemnify fully, hold harmless and defend MPLCO
and its Affiliates from and against, and pay, any claims by
any person alleging a right to a broker's or finder's fee
based upon any actions of BUYER or its Affiliates in
connection with these transactions.
(J) BUYER has no knowledge prior to the Closing of any facts or
circumstances which would serve as the basis for a claim by
BUYER against MPLCO based upon a breach of any representation
or warranty of MPLCO in this Agreement. BUYER will be deemed
to have waived in full any breach of MPLCO's representations
and warranties of which BUYER has knowledge at Closing.
7. Environmental Provisions Applicable to Pipeline Assets.
(A) Environmental Review Period. BUYER acknowledges that prior to
signing this Agreement, BUYER was given the opportunity and
waived such opportunity to conduct, or BUYER conducted or had
conducted on BUYER's behalf, at its own risk and expense and
to BUYER's satisfaction, an assessment of the Pipeline Assets
consisting of (i) a surface inspection of the Pipeline Assets,
and (ii) an inspection of MPLCO's available historical files
for information, if any, covering: (a) any environmental
issues, including but not limited to, spills or disposal of
crude oil, petroleum, petroleum products or hazardous
substances, underground injection or solid waste disposal on
the real property on which the Pipeline Assets are located.
BUYER acknowledges that MPLCO makes no representations or
warranties, express or implied, with regard to the accuracy or
completeness of any files or other records reviewed. The
activities covered by this paragraph are collectively called
the "Environmental Assessment."
(B) Baseline Condition. In order to establish the Environmental
Condition of the Pipeline Assets, MPLCO, BUYER and its
Authorized Representatives have reviewed or acknowledged the
existence of the Environmental Documents, which include the
results of all tests conducted by BUYER and its Authorized
Representatives under Section 7A, if any. MPLCO and BUYER have
agreed that Exhibit J includes or references all material
information, known to exist by either Party, related to,
affecting or concerning the Environmental Condition or status
of the Pipeline Assets as of the Closing Date and that such
information shall constitute the "Baseline" Condition of the
Pipeline Assets. MPLCO shall not be responsible
for any Environmental Condition whether or not identified as
part of the Baseline Condition.
(C) MPLCO's Retained Environmental Liabilities. MPLCO shall retain
and be solely responsible only for Environmental Liabilities
in connection with Off-Site Disposal Activities with respect
to the Pipeline Assets performed by MPLCO prior to the Closing
Date ("Retained Environmental Liability").
(D) BUYER's Assumed Environmental Liabilities. Except for MPLCO's
Retained Environmental Liability, BUYER shall assume and be
solely responsible for all Environmental Liabilities relating
to or arising out of the Pipeline Assets, whether existing or
asserted before, on or after the Closing Date, whether known
or unknown, whether based on past, present or future
conditions or events, including but not limited to undertaking
such Remediation Activities of the Environmental Conditions as
may be required by applicable laws, regulations, or
governmental orders (the "Assumed Environmental Liabilities").
In no event shall BUYER's obligations under this Section 7
terminate upon the lease, sale, or other transfer of the
Pipeline Assets or any portion of the Pipeline Assets
regardless of any assumption of such obligations by a
subsequent lessee, purchaser, or other transferee.
(E) MPLCO's Environmental Indemnity. MPLCO agrees to indemnify,
hold harmless and defend BUYER from and against any Damages
and Proceedings asserted against or incurred by BUYER relating
to or arising out of Retained Environmental Liabilities.
(F) BUYER's Environmental Indemnity. For purposes of Section 7(F),
where MPLCO is the indemnified party, the term "MPLCO" shall
include MPLCO and its Affiliates and the directors, officers
and employees, and all successors and assigns of the
foregoing. From and after the Closing Date, BUYER shall
indemnify, hold harmless and defend MPLCO from and against any
Damages and Proceedings asserted against or incurred by MPLCO
relating to the Assumed Environmental Liabilities for the
Pipeline Assets, including but not limited to:
(a) Any Environmental Liabilities, except for MPLCO's
Retained Environmental Liabilities;
(b) Any Release of any Regulated Substance related to
operations of the Pipeline Assets occurring prior to,
on or after the Closing Date;
(c) Any residual Environmental Condition remaining at the
Pipeline Assets or any areas Off-Site on or after the
Closing Date;
(d) Any Third Party Environmental Claim made by a Third
Party on or after the Closing Date;
(e) Any Governmental Environmental Enforcement Action
that is taken against BUYER or MPLCO for events or
conditions that prior to, on or after the Closing
Date;
(f) Any Off-Site Disposal Activities resulting from the
ownership or operation of the Pipeline Assets on or
after the Closing Date;
(g) Any On-Site or Off-Site Remediation Activities
resulting from the ownership or operation of the
Pipeline Assets prior to, on or after the Closing
Date;
(h) Exacerbation of any Environmental Condition (whether
resulting in On-Site or Off-Site impacts) by BUYER or
its Authorized Representatives (which for purposes of
this Section 7(F) shall include its tenants,
customers, invitees, licensees, or any users of the
Pipeline Assets (except MPLCO); and
(i) Failure to comply with any Permit or Order, including
transferred or assigned Environmental Permits or
Orders identified on Exhibits M and N, by BUYER or
its Authorized Representatives.
(G) BUYER's Release of MPLCO for Environmental Liabilities.
BUYER, in consideration of the negotiated amount of
the Purchase Price, hereby unconditionally,
completely and forever releases and discharges MPLCO,
its Affiliates, and employees, officers, directors,
agents and representatives and all successors and
assigns of the foregoing, from all Environmental
Liabilities except MPLCO's Retained Environmental
Liability, including but not limited to the
following:
(a) Any Governmental Environmental Enforcement Action
taken against BUYER and attributable to any failure
by MPLCO to own or operate the Pipeline Assets prior
to the Closing Date in compliance with applicable
Environmental Laws;
(b) Any Third Party Environmental Claim made by a Third
Party on or after the Closing Date with respect to
the Pipeline Assets resulting from any Release
occurring prior to the Closing Date and caused by
MPLCO's ownership or operation of the Pipeline; and
(c) Any obligation by MPLCO to perform or ensure the
performance of any Remediation Activities.
BUYER shall deliver to MPLCO on the Closing Date the
release in the form of Exhibit O hereto.
(H) MPLCO's Access to the Pipeline Assets. Upon request by MPLCO
in connection with any written request or demand from any
Governmental Authority, BUYER shall, at no cost to MPLCO,
permit MPLCO, its Affiliates, and its Authorized
Representatives reasonable access to the Pipeline Assets.
MPLCO, its Affiliates or Authorized Representatives shall
provide forty-eight (48) hours written notice to BUYER for any
routine access by MPLCO or its Affiliates or Authorized
Representatives. MPLCO will provide thirty (30) days written
notice to BUYER for any access that MPLCO believes may result
in a material impact to BUYER's operations. MPLCO will make
reasonable efforts to minimize impacts on BUYER's operations.
The BUYER's obligations will be set forth in any Deeds Without
Warranty or other instrument of conveyance, conveying any Real
Property to be conveyed under this Agreement and will under
this Section 7 be a covenant running with the land and will
bind the successors and assigns of BUYER. Upon written request
by MPLCO, in connection with any request to MPLCO from any
Governmental Authority, BUYER shall provide MPLCO copies of
all reports, correspondence, notices and communications sent
or received from Governmental Authorities regarding the
Environmental Condition of the Pipeline Assets or any
remediation and/or investigation at the Pipeline Assets
related to the Baseline Condition or other copies of all
reports, correspondence, notices and communications sent to or
received from third parties concerning conditions that would
obligate (financially or otherwise) MPLCO.
(I) Environmental Issues
(a) BUYER acknowledges that there may have been spills of
wastes, crude oil, petroleum products, produced
water, or other materials in the past at or on the
Pipeline Assets or in connection with their
operation, and tank bottoms or other wastes may have
been placed at, on or under the Pipeline Assets. In
addition, the Pipeline Assets may contain asbestos in
piping coating, undisplaced crude oil, coats of
lead-based paints, PCB's in transformers, mercury in
electrical switches, Naturally Occurring Radioactive
Material (NORM), and other materials, substances and
contaminants. BUYER assumes all liability for or in
connection with the assessment, remediation, removal,
transportation, and disposal of any such materials
and associated activities in accordance with all
relevant rules, regulations, and requirements of
governmental agencies.
(b) As part of the consideration for the sale of the
Pipeline Assets, BUYER for itself, its successors and
permitted assigns, covenants and agrees that neither
the Real Property, nor any part thereof shall at any
time be used for any of the following specifically
listed facilities or uses, or any similar facility or
use: residential, child care, nursery school,
preschool, or any other educational facility, place
of worship, playground, hotel, motel, inn, bed and
breakfast or rooming house, nursing home,
rehabilitation center, hospital or community center
and that the installation of any water wells for
drinking or irrigation purposes along with the
construction of basements is prohibited; that these
covenants and agreements shall survive the Closing;
that these covenants and agreements are to run with
the Real Property; that these restrictive measures
will be inserted in the Deeds Without Warranty to be
delivered at the Closing and that similar restrictive
covenants shall be inserted in any deed, lease or
other instrument conveying or demising the Real
Property or any part thereof. Furthermore, BUYER for
itself, its successors and permitted assigns agrees
to execute any documents required by any Governmental
Authority having jurisdiction over the Pipeline
Assets that are consistent with the above use
restrictions.
(c) If Closing does not occur within the time required by
this Agreement, or upon earlier termination of this
Agreement, upon MPLCO's request, BUYER shall promptly
deliver to MPLCO all originals and copies (whether
written or electronic) that are in BUYER's or its
Authorized Representatives' possession of the
information, reports, or materials including
specifically those concerning the environmental or
other condition of the Pipeline Assets together with
all information, reports, or material furnished to
BUYER by MPLCO, and BUYER shall promptly cause third
parties to deliver to MPLCO such materials that are
in their possession.
(d) BUYER and MPLCO shall cooperate with each other in
all reasonable respects as to the transfer or
assignment of the Environmental Permits or Orders
that can be transferred or assigned under applicable
Environmental Laws and the making of any filings or
notifications or obtaining any authorizations
required under applicable Environmental Laws in
connection with the transfer of the Pipeline to
BUYER. MPLCO shall take the lead on all initial
notifications to applicable Governmental Authorities
requesting such transfer or assignment of any
Environmental Permits or Orders. BUYER, however,
shall be solely responsible for all subsequent
communications and filings needed to follow through
and complete the timely transfer or assignment of
such Environmental Permits or Orders. With respect to
any Environmental Permits or Orders issued under
applicable Environmental Laws prior to the Closing
Date that are transferred to BUYER, MPLCO, within
thirty (30) calendar days after the Closing Date
shall submit a letter to each applicable Governmental
Authority acknowledging that BUYER is assuming the
obligations of MPLCO under such Permit or Order.
(e) As between BUYER and MPLCO, BUYER shall be
responsible for all filing costs and administrative
expenses associated with such transfer or assignment
of any Environmental Permits or Orders pursuant to
this Agreement and for all costs and expenses
relating to or arising out of any change in terms or
conditions of such Environmental Permits or Orders
resulting from any transfer, assignment or
re-issuance of such Environmental Permits or Orders
to BUYER, except for any such costs and expenses
related to or arising out of MPLCO's non-compliance
with such Environmental Permits or Orders. With
respect to those Environmental Permits or Orders that
cannot be transferred or assigned under applicable
Environmental Laws, BUYER will use reasonable efforts
at BUYER's cost and expense to obtain new permits or
orders.
(f) MPLCO has disclosed and BUYER has acknowledged the
Manheim Litigation which relates to the Environmental
Condition of a portion of the Pipeline Assets. MPLCO
is responsible for all costs and liabilities arising
from the Manheim Litigation, however, BUYER agrees,
that BUYER will fully cooperate with any requests
made to BUYER by MPLCO in connection with the Manheim
Litigation, including, without limitation, (i)
providing copies to MPLCO of any future documentation
relating to the Environmental Condition of the
Pipeline Assets affected by the Manheim Litigation,
(ii) allowing MPLCO access to such portion of the
Pipeline Assets, and (iii) performing any Remediation
Activities with respect to such portion of the
Pipeline Assets as may be required by MPLCO as a
result of the Manheim Litigation, including modifying
any Remediation Activities then being undertaken by
BUYER. In the event that any Remediation Activities
requested to be performed by MPLCO under this Section
7(I)(f) require BUYER to incur costs above those that
would have been incurred by BUYER in connection with
Remediation Activities BUYER would have otherwise
undertaken in order to comply with the terms of this
Agreement, MPLCO agrees to reimburse BUYER for such
excess costs upon receipt by MPLCO of an invoice for
such costs together with documentation supporting the
costs so long as BUYER has complied with the terms of
this Agreement. BUYER agrees that prior to commencing
any Remediation Activities for which
BUYER will be seeking reimbursement from MPLCO under
this Section 7(I)(f), BUYER shall provide MPLCO an
estimate of all costs BUYER will be requesting MPLCO
to incur for MPLCO's review and approval. BUYER
agrees that while the Manheim Litigation is pending,
BUYER will not contact the owners of the property who
are parties to the Manheim Litigation without the
express written consent of MPLCO, which consent shall
not be unreasonably withheld to the extent the
subject of such contact does not relate in any way
whatsoever to issues in the Manheim Litigation.
(J) Environmental Issues Applicable to Van Buren Terminal. The
Parties acknowledge that the provisions of this Section 7
shall only apply to the Pipeline Assets and all environmental
issues relating to the Van Buren Terminal and the assets
related thereto shall be governed by the supplemental terms
and provisions set forth in Appendix 1.
8. Right of Entry. BUYER agrees that the provisions of this Section 8
shall apply to any and all access to the Assets or other MPLCO property
in connection with this Agreement, whether such access occurred before
or will occur after the execution of this Agreement. MPLCO will, to the
extent it has the legal right to do so, provide BUYER (or its
contractor) with reasonable access to the Assets to conduct assessments
approved by MPLCO. BUYER and/or its contractor shall comply with
prudent safety and industrial hygiene procedures, including without
limitation, the Safety Requirements set forth in Exhibit C attached
hereto, and shall review such procedures with MPLCO prior to
commencement of any assessment. BUYER, its employees, agents and/or
contractors shall comply with the Drug and Alcohol Prohibitions and
Requirements set forth in Exhibit D attached hereto, while present on
the Assets or other MPLCO property. BUYER shall submit schedules to
MPLCO which show when BUYER plans to enter the Assets or other MPLCO
property. Said schedules shall be in sufficient detail to allow MPLCO
to determine in advance the approximate number of employees,
contractors, subcontractors and equipment that BUYER will have on the
sites where the Assets are located at any time, and shall be provided
to MPLCO sufficiently in advance of the date or dates of entry to
enable MPLCO to arrange to have an inspector(s) present at the site(s).
BUYER shall not enter the real property on which the Assets are located
without the presence of an MPLCO employee or MPLCO contractor. It is
understood that there are risks associated with entry onto the Assets,
and BUYER assumes responsibility for the safety of personnel and
property of both BUYER and BUYER's contractors. BUYER agrees to inspect
the Assets for safety purposes prior to such entry and to exercise
precautions and conduct all actions in a way that will, in so far as
reasonably possible, assure the safety of persons and property.
9. Review of Title. During the assessment period, BUYER conducted a review
of the Easements, including permits and licenses, to determine whether
MPLCO has good title to the Easements and whether any consents or
approvals are required for assignment of the Easements and/or permits.
If consents or approvals are required for assignment of any Easement,
MPLCO shall, immediately after Closing, endeavor to obtain such
consents and/or approvals, provided that (i) MPLCO shall not be
required to incur any expense beyond MPLCO's usual overhead expense,
(ii) BUYER shall cooperate in obtaining any such consents and or
approvals, (iii) BUYER shall execute any reasonable documentation
requested by the Party(ies) whose consent or approval may be required,
and (iv) BUYER accepts the assignment documents in the form attached
hereto as Exhibit G.
10. Confidentiality. The Confidentiality Agreement executed by and between
MPLCO and BUYER, dated March 18, 2004, a copy of which is attached
hereto as Exhibit E is hereby
incorporated into this Agreement and shall from and after the date
hereof and following Closing be deemed to apply not only to the
Evaluative Information described therein but also to any other
information obtained from MPLCO in connection with or as part of the
Assets (collectively, "MPLCO Information"). BUYER shall maintain in
confidence and not disclose to third parties or its employees, who are
not involved in evaluating this asset acquisition, any MPLCO
Information obtained in the review of title or any other information
obtained from MPLCO, and shall not use such MPLCO Information in any
manner that is adverse or detrimental to the interests of MPLCO.
11. Records. BUYER shall not destroy or otherwise dispose of any records,
files and other data acquired hereunder for a period of three (3) years
following Closing (except as to tax records, for which the period shall
be the applicable statute of limitations) except upon thirty (30) days
prior written notice to MPLCO. During such periods, BUYER shall make
such records, files and other data available to MPLCO or its authorized
representatives for any business, legal or technical need in a manner
which does not unreasonably interfere with BUYER's business operations.
Additionally, MPLCO shall have the right to retain copies of any
records, files or other data transferred to BUYER hereunder.
12. Option to Terminate. Except as hereinafter provided, BUYER shall have
the option of terminating this Agreement by providing written notice to
MPLCO prior to the Closing Date in the event BUYER determines that the
Assets are subject to any (i) Material Defect in the Pipeline Assets or
(ii) Material Defect in the title to any of the Real Property related
to the Pipeline Assets. To be effective, any such notice shall
specifically identify and describe the basis for such termination and
shall include substantial evidence thereof. Minor deviations in the
location of a pipeline relative to a defined right of way in an
easement shall not be deemed to constitute a title defect for purposes
of this Agreement.
For purposes of this Section, a "Material Defect" shall mean (i) a
defect with regard to the Pipeline Assets which (1) will significantly
impair the operating functions or safety of the Facilities, and (2)
would cost in excess of FIVE MILLION AND NO/100 DOLLARS ($5,000,000)
cash to cure or remedy, and (3) was not disclosed to or known by BUYER
prior to BUYER's execution of this Agreement, (ii) a defect with regard
to the Environmental Condition of the Pipeline Assets which (1) occurs
from a new Release after the Effective Date, but prior to Closing, and
(2) would cost in excess of FIVE MILLION AND NO/100 DOLLARS
($5,000,000) cash to cure or remedy, or (iii) if not involving the
Facilities, a defect or accumulation of defects which (1) would cost in
excess of FIVE MILLION AND NO/100 DOLLARS ($5,000,000) to cure or
remedy, and (2) was not disclosed to or known by BUYER prior to BUYER's
execution of this Agreement.
Notwithstanding the delivery of such a notice of termination by BUYER
to MPLCO, this Agreement shall not be terminated if within thirty (30)
days after MPLCO's receipt of such notice (1) MPLCO remedies or agrees
to remedy, to a degree which is mutually agreed upon prior to Closing,
such Material Defect or (2) MPLCO and BUYER mutually agree on an
adjustment to the Purchase Price, which adjustment shall reflect
BUYER's cost to remedy such defect.
13. Indemnification and Release.
(A) In addition to BUYER's release or indemnity in any other
Section of this Agreement or in any other agreement executed
pursuant to or in connection with this Agreement, BUYER agrees
as follows:
(1) BUYER, its successors and assigns (hereinafter in
this Section 13 individually and collectively, "BUYER
Indemnitor") agrees to release, indemnify, defend,
and hold harmless MPLCO, EMC and its Affiliates, and
their respective officers, directors, employees,
contractors, representatives, successors, and assigns
(hereinafter in this Section 13 individually and
collectively, "MPLCO Indemnitee") from all Claims
asserted against MPLCO Indemnitee by any person or
entity arising from or related to (i) the breach by
BUYER (or any shareholder, officer, director,
employee of BUYER) of any representation, warranty or
covenant contained in this Agreement, in any Exhibit
or Schedule to this Agreement, or in any document,
instrument, agreement or certificate delivered under
this Agreement; provided that BUYER shall have no
indemnification obligation for any such Claim if
BUYER has not received a written claim from MPLCO
(specifying in reasonable detail the basis for such
Claim) within one year following the Closing Date, or
(ii) BUYER Indemnitor's ownership, operation, use,
repair, removal, separation or control of the
Pipeline Assets, before or after Closing including,
without limitation, performance of BUYER Indemnitor's
obligations under Sections 6, 8, 10, and 18 of this
Agreement and performance of BUYER Indemnitor's
obligations under any agreements or undertakings
related to this Agreement, including without
limitation, all agreements listed as Exhibits to this
Agreements, except to the extent MPLCO has
indemnified BUYER Indemnitee in this Section 13 or
under any agreements or undertakings related to this
Agreement, including without limitation, all
agreements listed as Exhibits to this Agreement.
(2) BUYER Indemnitor agrees to release, indemnify, defend
and hold harmless MPLCO Indemnitee from any Claim
made after Closing against any insurance policy
covering the Pipeline Assets or operations of MPLCO,
including without limitation the ExxonMobil/Ancon
Policies by or through BUYER Indemnitor or any person
subrogated to BUYER Indemnitor's rights. This release
and indemnity shall cover, without limitation, any
claim by an insurer for reinsurance, retrospective
premium payments or prospective premium increases
attributable to any such Claim.
(3) MPLCO, it successors and assigns agrees to release,
indemnify, defend, and hold harmless BUYER and its
Affiliates, and their respective officers, directors,
employees, contractors, representatives, successors,
and assigns (hereinafter in this Section 13
individually and collectively, "BUYER Indemnitee")
from all Claims asserted against BUYER Indemnitee by
any person or entity arising from or related to the
breach by MPLCO (or any shareholder, officer,
director, employee of MPLCO) of any representation,
warranty or covenant contained in this Agreement, in
any Exhibit or Schedule to this Agreement, or in any
document, instrument, agreement or certificate
delivered under this Agreement; provided, however,
that except to the extent such a Claim arises under
the Post-Closing Activities Letter Agreement or the
Tariff Letter Agreement, MPLCO shall have no
indemnification obligation for any such Claim if
MPLCO has not received a written claim from BUYER
(specifying in reasonable detail the basis for such
Claim) within one year following the Closing Date.
(B) WITHOUT LIMITING THE RELEASES AND INDEMNITIES IN SECTION
13(A), IT IS THE EXPRESS INTENTION OF THE PARTIES THAT THE
RELEASES AND INDEMNITIES IN THIS SECTION 13 SHALL APPLY TO
CLAIMS THAT MAY ARISE IN WHOLE OR IN PART FROM THE NEGLIGENCE,
GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR STRICT LIABILITY OF
ANY INDEMNITEE,
WHETHER ACTIVE, PASSIVE, JOINT, CONCURRENT, OR SOLE. THE
PARTIES HERETO ALSO ACKNOWLEDGE THAT THIS STATEMENT COMPLIES
WITH THE EXPRESS NEGLIGENCE RULE AND CONSTITUTES CONSPICUOUS
NOTICE.
(C) If any provision or provisions of this Section, or any
portions thereof, should be deemed invalid or unenforceable
pursuant to a final determination of any court of competent
jurisdiction or as a result of future laws, such determination
or action shall be construed so as not to affect the validity
or effect of any other portion or portions of this Section not
held to be invalid or unenforceable.
(D) If any action, suit, proceeding or claim is commenced, or if
any claim, demand or assessment is asserted, by a Third Party
in respect of which a Party is entitled to be indemnified
under this Section 13 or any other agreement or instrument
delivered pursuant or in connection with this Agreement, the
Party against which the claim is asserted may defend against
the action, suit, proceeding or claim and enter into any
reasonable compromise or settlement. The Party against which
the claim is asserted may thereafter collect from its
indemnitor the reasonable costs and expenses related to such
defense and compromise or settlement, if applicable, including
without limitation, attorneys fees, together with the amount
paid or owed to such third party pursuant the action, suit,
proceeding, claim, demand, compromise or settlement.
14. Closing.
(A) Closing Date. The consummation of the purchase and sale under
this Agreement (the "Closing") shall occur on or before thirty
(30) days after satisfaction or waiver of the conditions set
forth in Sections 14(B)(4) and 14(C)(6) (the "Closing Date"),
at the offices of MPLCO at 800 Bell Street, Houston, Texas,
unless the Parties mutually agree to another location. Time
shall be of the essence to this Agreement. Notwithstanding
anything contained herein to the contrary, in the event that
the conditions set forth in Sections 14(B)(4) and 14(C)(6)
have been satisfied or waived by the Parties, but the
conditions set forth in Sections 14(B)(5) and 14(C)(7) have
not been satisfied or waived by the Parties, then (i) the
Closing shall occur with respect to all Assets except for the
interest in the Van Buren Terminal as set forth in Appendix 1;
(ii) the Closing with respect to such interests in the Van
Buren Terminal shall be delayed until such time as the
conditions set forth in Sections 14(B)(5) and 14(C)(7) have
been satisfied or waived by the Parties; and (iii) the
Purchase Price to be paid at the Closing for all of the Assets
except the interests in the Van Buren Terminal will be reduced
by $5,000,000 which is the portion of the Purchase Price
allocated to the interests in the Van Buren Terminal as set
forth in Exhibit A-4. In the event the Closing with respect to
the interests in the Van Buren Terminal described in Appendix
1 is delayed, then (i) this Agreement shall remain in full
force and effect with respect to the interests in the Van
Buren Terminal unless terminated in accordance with the terms
of this Agreement, (ii) the Closing of the sale of the
interests in the Van Buren Terminal in accordance with this
Agreement shall occur on or before thirty (30) days after
satisfaction or waiver of the conditions set forth in Sections
14(B)(5) and 14(C)(7) as if such transfer had occurred on the
Closing Date, and (iii) at the Closing of the sale of the
interests in the Van Buren Terminal, BUYER will pay MPLCO or
its affiliate $5,000,000 in addition to any other amounts due
under Appendix 1 for the interest in the Van Buren Terminal.
In the event that the conditions set forth in Sections
14(B)(4) and 14(C)(6) have not been satisfied or waived and
the Closing has not occurred by June 30, 2005, then either
Party may terminate this Agreement upon ten (10) days' written
notice to the other Party. In the event that the conditions
set forth in Sections 14(B)(5) and 14(C)(7) have not been
satisfied or waived and the Closing of the transfer of the
interests in the Van Buren Terminal has not occurred by June
30, 2005, then either Party may terminate this Agreement,
including Appendix 1, to the extent the same is applicable to
the interests in the Van Buren Terminal upon ten (10) days'
written notice to the other Party. At the Closing, MPLCO and
BUYER shall execute and/or deliver the following documents:
(1) a Bill of Sale in the form attached hereto as Exhibit F,
covering the Facilities;
(2) a Blanket Assignment in the form attached hereto as
Exhibit G covering all of the Easements;
(3) a Parent Company Guaranty in the form attached hereto as
Exhibit S;
(4) a Non-Foreign (FIRPTA) Certification, in the form attached
as Exhibit Q, executed by MPLCO;
(5) Incumbency certificates for all signatory officers of
BUYER and MPLCO;
(6) Articles of Incorporation & Bylaws of BUYER and MPLCO,
certified as true and correct by the corporate secretary or
officer of similar authority;
(7) Certified Corporate Resolutions of BUYER and MPLCO
authorizing all aspects of transactions contemplated herein;
(8) a fully executed Release in the form of Exhibit O;
(9) any other documents, instruments, and/or certificates
reasonably requested by MPLCO or BUYER or otherwise
contemplated by this Agreement;
(10) an Assignment and Assumption of Material Contracts in the
form of Exhibit P;
(11) Environmental Baseline Condition of the Pipeline Assets
as mutually agreed to by the Parties prior to Closing and
attached hereto as Exhibit J;
(12) Interim Monitoring and Operations Control Center
Agreement in the form set forth in Exhibit R;
(13) the Post-Closing Activities Letter Agreement in the form
set forth in Exhibit T; and
(14) the Tariff Letter Agreement in the form set forth in
Exhibit V.
The above listed closing documents shall be executed at Closing and
made effective as of 12:01 a. m. on the date immediately following the
day of Closing unless MPLCO and BUYER mutually agree to the contrary.
BUYER shall deliver the balance of the Purchase Price to MPLCO's
account by wire transfer of immediately available funds at Closing,
without discount or deduction other than as expressly set forth in this
Agreement and shown on a closing statement executed by both BUYER and
MPLCO.
(B) Obligations of BUYER to Close. The obligation of BUYER to
consummate the purchase of the Assets on the Closing Date is
subject to: (i) the satisfaction of the
following conditions on or prior to the Closing Date, and/or
(ii) BUYER's written waiver of any such conditions as remain
unsatisfied as of the Closing Date:
(1) Accuracy of Representations. All representations and
warranties made by MPLCO in this Agreement shall be true and
correct in all material respects as of the date hereof and as
of the Closing Date;
(2) No Default. MPLCO shall have complied in all material
respects with each covenant and agreement to be performed by
MPLCO under this Agreement by or on the Closing Date;
(3) Agreements. MPLCO shall have executed, or shall be
prepared to execute or cause the execution of simultaneously
with Closing, all documents and agreements provided for in
this Agreement, including the documents and agreements listed
in Section 14(A);
(4) Required Governmental Consents. All consents from
Governmental Authorities shall have been obtained and shall be
in full force and effect on the Closing Date, and shall not
impose any material adverse condition on BUYER or its
Affiliates, and all waiting periods under the
Hart-Scott-Rodino Act shall have expired or have been properly
terminated or any required consents in connection therewith
shall have been obtained and such consents shall not impose
any material adverse conditions on BUYER or its Affiliates;
(5) Required Van Buren Terminal Consents. MPLCO shall have
obtained from Hess its consent to the transfer of MPLCO's
interest in the Van Buren Terminal to BUYER and the
resignation of EMOC as operator of the Van Buren Terminal and
all documents required by the Parties and Hess have been
executed in connection with such transfer and resignation, or
Hess shall have waived the requirement for such consent. In
addition, MPLCO shall have obtained from Sun its consent to
the assignment to BUYER of the Sun Throughput Agreement, or
Sun shall have waived the requirement for such consent;
(6) No Termination. BUYER shall not have terminated this
Agreement under Section 12;
(7) No Order or Proceeding. No Order by any Government
Authority, threat by any Government Authority which is
evidenced in writing, or Proceeding which in all reasonable
likelihood might prohibit or render illegal BUYER's
consummation of the transactions contemplated hereby shall be
in effect; and
(8) Related Purchase Agreements. The Parties or their
respective Affiliates shall have satisfied all conditions for
closing set forth in the Related Purchase Agreements on or
prior to the Closing Date and/or the Parties or their
respective Affiliates shall have agreed in writing to the
waiver of any such conditions as may remain unsatisfied as of
the Closing Date and the closings set forth in the Related
Purchase Agreements have occurred or are occurring
simultaneously with the Closing.
(C) Obligation of MPLCO to Close. The obligation of MPLCO to
consummate the sale of the Assets on the Closing Date shall be
subject to: (i) the satisfaction of the following conditions
on or prior to the Closing Date and/or (ii) MPLCO's written
waiver of any such conditions as remain unsatisfied as of the
Closing Date:
(1) Accuracy of Representations. All representations and
warranties made by BUYER in this Agreement shall be true and
correct in all material respects as of the date hereof and as
of the Closing Date;
(2) No Default. BUYER shall have complied in all material
respects with each covenant and agreement to be performed by
BUYER under this Agreement or by the BUYER and/or its
Affiliates under the Related Purchase and Sale Agreements by
or on the Closing Date;
(3) Agreements. BUYER shall have executed, or shall be
prepared to execute simultaneously with Closing, all documents
and agreements provided for in this Agreement to be signed by
BUYER, including the documents and agreements listed in
Section 14(A).
(4) No Order or Proceeding. No Order by any Government
Authority, threat by any Government Authority which is
evidenced in writing, or Proceeding which in all reasonable
likelihood might prohibit or render illegal BUYER's
consummation of the transactions contemplated hereby shall be
in effect;
(5) Related Purchase Agreements. The Parties or their
respective Affiliates shall have satisfied all conditions for
closing set forth in the Related Purchase Agreements on or
prior to the Closing Date and/or the Parties or their
respective Affiliates shall have agreed in writing to the
waiver of any such conditions as may remain unsatisfied as of
the Closing Date and the closings set forth in the Related
Purchase Agreements have occurred or are occurring
simultaneously with the Closing;
(6) Required Governmental Consents. All consents from
Governmental Authorities shall have been obtained and shall
not impose any material adverse condition on MPLCO or its
Affiliates, and shall be in full force and effect on the
Closing Date and all waiting periods under the
Hart-Scott-Rodino Act shall have expired or have been properly
terminated or any required consents in connection therewith
shall have been obtained and such consents shall not impose
any material adverse conditions on MPLCO or its Affiliates;
(7) Required Van Buren Terminal Consents. In addition, (i)
MPLCO shall have obtained from Hess its consent to the
transfer of MPLCO's interest in the Van Buren Terminal to
BUYER and the resignation of EMOC as operator of the Van Buren
Terminal and all documents required by the Parties and Hess
have been executed in connection with such transfer and
resignation, or (ii) Hess shall have waived the requirement
for such consent;; and
(8) MPLCO Tariff Rates. The MPLCO Tariff Rates filed with FERC
shall have become effective.
(D) Filing of Tariff Rates. Following the Effective Date, MPLCO
shall file the tariff rates set forth on Exhibit U with the
Federal Regulatory Commission ("FERC") in accordance with 18
CFR Section 342.3 (the "MPLCO Tariff Rates").
(E) Assignments of Easements. At Closing, MPLCO shall deliver to
BUYER the Blanket Assignment described in Section 14(A)(2). In
the event that it is necessary due to the requirements of
Governmental Authorities for recording purposes to have
separate
assignments for each Easement, BUYER shall be responsible for
the preparation and recordation, at its cost, of all such
documentation. MPLCO agrees to execute any documentation
necessary to assign the Easements to MPLCO so long as such
documentation is in a form set forth in this Agreement or is
otherwise consistent with the terms of this Agreement and so
long as such documentation does not alter any rights or
obligations of BUYER or MPLCO set forth in this Agreement.
15. Permits. It shall be BUYER's responsibility to obtain the issuance or
transfer of all environmental and other operational permits; provided
however, that MPLCO shall reasonably cooperate with BUYER's reasonable
efforts to obtain the transfer of such permits.
16. Property Taxes. All ad valorem taxes and special assessments ("Property
Taxes") and PURTA for the current year shall be apportioned between
MPLCO and BUYER as of the Closing Date, based on MPLCO's best estimate
of the current year's taxes based on the current assessed values or
actual payments. Periods prior to the Closing Date shall be allocated
to MPLCO, and periods subsequent to the Closing Date shall be allocated
to BUYER. To the extent Property Taxes for the current year have not
been paid by the Closing Date, MPLCO's allocated share of the Property
Taxes for the current year shall be credited to BUYER at Closing and
BUYER shall assume the responsibility to pay the Property Taxes and
PURTA. In the event MPLCO has already paid the current year's Property
Taxes, MPLCO shall be credited with BUYER's allocated share of the
Property Taxes and PURTA for the current year. A post-Closing
adjustment will be made to reflect accurately MPLCO's responsibility
for that portion of Property Taxes attributable to the period prior to
the Closing Date, and BUYER's responsibility for that portion of
Property Taxes attributable to the period following the Closing Date.
The post-closing adjustment will be made six (6) months following the
Closing Date based upon information available to BUYER at that time.
BUYER shall deliver to MPLCO reasonable documentation to support any
post-Closing adjustment proposed by BUYER.
17. Other Taxes. As may be required by relevant taxing agencies, BUYER
shall pay on the date of Closing all applicable state and local sales
tax, use tax, business license tax, realty transfer tax, and any
documentary stamp tax incurred in connection with the consummation of
the transactions contemplated by this Agreement. BUYER's responsibility
for any realty transfer taxes and return filings is directly with the
state and/or local taxing jurisdictions. MPLCO and BUYER agree to work
together and cooperate on all realty transfer tax matters, including
the preparation of any required transfer tax returns and return filing
extensions that may need to be filed after closing with the appropriate
taxing jurisdictions. In addition, as set forth in Section 14(E), BUYER
shall pay for any fees or charges necessary for the preparation and
recordation of the documents required for the assignment of the
Easements from MPLCO to BUYER.
18. Allocation of Carrier Obligations and Proceeds. The Facilities may
contain petroleum products which is held for the account of shipper(s).
It is understood that title to the contents of the Facilities will
remain with the shipper(s) and that BUYER assumes the obligation to
deliver such contents in accordance with MPLCO's existing arrangements
with the shipper(s), whether under a published tariff or a private
transportation or storage agreement. Further, to the extent that
petroleum products have been offered for shipment in the Facilities
under a published tariff or pursuant to rights under a private
transportation agreement, but not yet delivered to MPLCO, BUYER shall
receive those products for transportation in the normal course of
business. Tariff charges for transportation during the month of sale
shall be allocated between MPLCO and BUYER on the basis of the
number of days that each party owns the Facilities during the month of
sale, provided that payments of such charges shall be allocated and
divided between MPLCO and BUYER only after receipt thereof, unless
received prior to the date of Closing.
19. Notices. All notices, requests, demands, instructions and other
communications required or permitted to be given hereunder shall be in
writing and shall be delivered personally or mailed by registered mail,
postage prepaid, as follows:
If to BUYER, addressed to:
Buckeye Pipeline Transportation LLC
Attention: Stephen C. Muther, Esq.
5 Radnor Corporate Center
Suite 500
100 Matsonford Road
Radnor, Pennsylvania 19087
If to MPLCO, addressed to:
Mobil Pipe Line Company
Attention: Business Development Manager
P.O. Box 2220
Houston, Texas 77252-2220
or to such other place as either party may designate as to itself by
written notice to the other. All notices will be deemed given on the
date of receipt at the appropriate address.
20. Default. If either Party or either Party's Affiliates (the
"Non-Defaulting Party") terminates this Agreement because the other
Party or the other Party's Affiliates (the "Defaulting Party") fails to
perform any covenant, obligation or agreement contained in this
Agreement or any Related Purchase Agreement, the Defaulting Party shall
be fully liable for any and all damages, costs and expenses (including,
but not limited to, reasonable attorneys' fees) sustained or incurred
by the Non-Defaulting Party in connection with this Agreement and the
Related Purchase Agreements; provided, however, neither Party shall be
liable to the other for punitive, indirect, consequential or special
damages. A failure by any Party or its Affiliate to perform any
covenant, obligation or agreement contained in a Related Purchase
Agreement shall be deemed a failure to perform under this Agreement.
The Parties agree that a Party would be irreparably injured if the
other Party breaches any of its obligations under this Agreement.
Accordingly, the non-breaching Party and its Affiliates who are party
to a Related Purchase Agreement are entitled to an injunction and
specific enforcement of this Agreement and the Related Purchase
Agreements, in addition to any other remedy available at law or in
equity. In addition, if BUYER fails to perform and this Agreement is
terminated by MPLCO, MPLCO shall be free immediately to sell the Assets
to any third party without any restriction under or by reason of this
Agreement.
21. Governing Law and Venue. The provisions of this Agreement and the
documents delivered pursuant hereto shall be governed by and construed
in accordance with the laws of the State of Texas without regard to its
conflicts of laws provisions which if applied might require the
application of the laws of another jurisdiction. Each Party hereby
submits to the exclusive jurisdiction of the courts of the State of
Texas and the United States District Court located in Harris County
Texas. Furthermore, each Party hereby waives any right or basis it may
have to object to or claim a venue other than Harris County Texas.
22. Assignment. This Agreement shall be binding upon and shall inure to the
benefit of the Parties and their respective permitted successors and
assigns. Except for any assignment of this Agreement to effectuate a
like kind exchange in accordance with Section 31, this Agreement may
not be assigned, in whole or in part, without the prior written consent
of the other Party, which consent shall not be unreasonably withheld;
provided, however, either Party may assign this Agreement, in whole or
in part, to an Affiliate or any entity into which it is merged or
combined. Any assignment of this Agreement, by operation of law or
otherwise, shall not relieve the assignor of any obligations hereunder.
Any assignment made in violation of this Section 22 shall be void.
23. Entire Agreement; Amendments. This Agreement, including the attached
Exhibits and the Appendix, and any other documents required to be
delivered by the terms of this agreement, constitute the entire
agreement between the Parties hereto with respect to the subject matter
hereof, superseding any and all prior negotiations, discussions,
agreements and understandings, whether oral or written, relating to
such subject matter. Exhibits A through V, as more specifically
described herein or in the attached "Schedule of Exhibits", and
Appendix 1 are incorporated herein for all purposes. This Agreement may
not be amended and no rights hereunder may be waived except by a
written document signed by all Parties to this Agreement. With respect
to the Van Buren Terminal only, in the event that any terms or
provisions contained in this Agreement are in conflict with the
supplemental terms and provisions set forth in Appendix 1, the
supplemental terms and provisions of Appendix 1 shall prevail.
24. Publicity. All notices to third parties and other publicity concerning
the transactions contemplated by this Agreement shall be jointly
planned and coordinated by and between BUYER and MPLCO; provided,
however, no such notices or other publicity shall disclose the Purchase
Price, except as required by law. No party shall act unilaterally in
this regard without the prior written approval of the other, unless
required by law.
25. Survival. The following provisions of this Agreement shall not survive
the Closing: 2, 3, 12, and 14. Such provisions will be merged with and
will be superseded by the documents executed at Closing.
Notwithstanding the fact that the other provisions of this Agreement
are not expressly included in the conveyance documents, all other
provisions of this Agreement shall survive Closing and shall not be
deemed merged therewith.
26. No Third Party Beneficiary. Except as otherwise set forth elsewhere in
this Agreement, it is expressly understood that the provisions of this
Agreement do not impart enforceable rights in anyone who is not a Party
or a successor or assign of a party hereto.
27. Joint Efforts. This Agreement was prepared with each of the Parties
having access to their own legal counsel. Accordingly, the Parties
stipulate and agree that this Agreement shall be deemed and considered
for all purposes as prepared through the joint efforts of the Parties
and shall not be construed against one Party or the other as a result
of the preparation, submittal or other event of negotiation or
drafting.
28. Headings. The division of this Agreement into articles, sections, and
subsections and the insertion of headings and table of contents, if
any, are for convenience only and shall not be used in or affect the
construction or interpretation of this Agreement.
29. Severability. If any term or provision or portions thereof is deemed
invalid or unenforceable pursuant to a final determination of any court
of competent jurisdiction or as a result of future laws, such
determination or action shall be construed so as not to affect the
validity
or effect of any other portion or portions of this Agreement.
Furthermore, it is the intent and agreement of the Parties that this
Agreement shall be deemed amended by modifying such term or provision
to the extent necessary to render it valid and enforceable while
preserving the original intent of the affected term or provision or if
that is not possible, by substituting therefor another provision that
is valid and enforceable and achieves the same objective.
30. Further Assurances and Documents. Each Party shall promptly take such
further actions, including the execution of further documents, as shall
be reasonably required in order to carry out the intent and purposes of
this Agreement or to protect the rights and remedies hereby created or
intended to be created in favor of one or both Parties.
31. Tax-deferred Exchange. Notwithstanding the general prohibition against
an assignment of all or any portion of this Agreement contained in
Section 22 of this Agreement, BUYER hereby agrees that MPLCO may elect
to structure the transaction contemplated herein as a tax-deferred
exchange in accordance with Section 1031 of the Internal Revenue Code.
In the event that MPLCO elects to effect a tax-deferred exchange, BUYER
further agrees to reasonably assist and accommodate MPLCO by (1)
consenting and agreeing to the assignment from MPLCO to a qualified
intermediary of all of MPLCO's right, title and interest in and to this
Agreement; and (2) agreeing to accept title to the Property in the form
of a cash sale direct from MPLCO, and (3) agreeing to pay the full
purchase price, adjusted for any closing credits due to BUYER
hereunder, for the Property at the closing of the sale contemplated
herein direct to the qualified intermediary. BUYER shall incur no
additional costs, delays, expenses, or liabilities in this transaction
as a result of or in connection with said tax-deferred exchange.
32. Parental Guaranty. At Closing, BUYER shall deliver a parent company
guaranty from Buckeye Partners, LP in the form of Exhibit S.
33. Limitations of Damages. NOTWITHSTANDING ANYTHING TO THE CONTRARY
CONTAINED HEREIN, EXCEPT IN THE CASE OF THE GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT OF A PARTY'S MANAGERIAL OR SUPERVISORY PERSONNEL, NEITHER
PARTY SHALL BE LIABLE OR RESPONSIBLE TO ANOTHER PARTY HERETO OR ITS
AFFILIATES FOR ANY CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES, OR
FOR LOSS OF PROFITS OR REVENUES (COLLECTIVELY REFERRED TO AS SPECIAL
DAMAGES) INCURRED BY SUCH PARTY OR ITS AFFILIATES THAT ARISE OUT OF OR
RELATE TO THIS AGREEMENT, REGARDLESS OF WHETHER SUCH CLAIM ARISES UNDER
OR RESULTS FROM CONTRACT, TORT OR STRICT LIABILITY, provided that the
foregoing limitation is not intended and shall not affect Special
Damages imposed in favor individuals or entities that are not Parties
to this Agreement.
34. Employee Offers and Related Matters. Upon execution of this Agreement
by both Parties, MPLCO will provide to BUYER Schedule 1 to Exhibit H.
In accordance with the timing set forth in a schedule to be mutually
agreed to by the Parties after the Effective Date, BUYER will have the
right to interview and offer employment to any of MPLCO' or its
Affiliates' Eligible Employees assigned to the Pipeline Assets or the
EMOC Terminals, but shall not be obligated to do so. BUYER agrees to
comply with the terms and conditions set forth in Exhibit H with
respect to any Acquired Employees. As between BUYER and MPLCO and its
Affiliates, the Parties agree that Exhibit H shall govern employment
matters related to Acquired Employees. Notwithstanding anything
contained in this agreement to the contrary, any Affiliate of MPLCO who
employs an Eligible Employee, including without
limitation, EMPCo, shall be a third party beneficiary of the terms and
provisions of this Section 34 and of those set forth in Exhibit H and
all such terms and provisions shall specifically inure to the benefit
of any such Affiliate of MPLCO.
35. Post-Closing Covenants.
(A) Pipeline Integrity Work. The Parties have agreed on certain
matters concerning pipeline integrity work to be performed by
BUYER on the Paulsboro System following Closing. The
agreements are more specifically described in the Post-Closing
Activities Letter Agreement.
(B) Delaware River Crossing. The Parties have agreed on certain
matters relating to the construction of a new pipeline
crossing of the Delaware River to be constructed by MPLCO and
transferred to BUYER following Closing. The agreements are
more specifically described in the Post-Closing Activities
Letter Agreement.
(C) Department of Transportation Order. The Parties have agreed on
certain matters related to compliance with a Consent Order
issued by the Department of Transportation in connection with
the Facilities. The agreements are more specifically described
in the Post-Closing Activities Letter Agreement.
(D) Tariff Rates. The Parties and/or their Affiliates have agreed
on certain matters concerning pipeline tariff rates to be
charged on the Storage Line, the North Line and the West Line
following Closing. The agreements are specifically described
in the Tariff Letter Agreement.
36. Inventory. At a time mutually agreed upon by the Parties prior to or at
the Closing Date, MPLCO shall conduct an inventory of all refined
products related to the Assets in accordance with MPLCO's measurement
and close-out procedures.
37. Commercially Reasonable Efforts; Time of Essence. Except as otherwise
specifically provided herein, BUYER and MPLCO shall each use
commercially reasonable efforts to satisfy the conditions to Closing
and otherwise consummate the transactions contemplated by this
Agreement as promptly as practical.
Executed on behalf of the Parties hereto on the dates set forth below the
respective signature lines but effective as of the date first set forth herein
above.
MPLCO: BUYER:
Mobil Pipe Line Company Buckeye Pipe Line Transportation LLC
By: /s/ John Y. DuPre By: /s/ Stephen C. Muther
-------------------------- ------------------------------
Name: John Y. DuPre Name: Stephen C. Muther
-------------------------- ------------------------------
Title: Vice President Title: Sr. V.P. and General Counsel
-------------------------- ------------------------------
Date: January 21, 2005 Date: January 21, 2005
-------------------------- ------------------------------
SIGNATURE PAGE TO THAT CERTAIN PURCHASE AND SALE AGREEMENT BY AND BETWEEN MOBIL
PIPE LINE COMPANY AND BUCKEYE PIPE LINE TRANSPORTATION LLC, AS OF THE DATE FIRST
SET FORTH ABOVE.
APPENDIX I
SUPPLEMENTAL TERMS AND CONDITIONS FOR SALE OF MPLCO'S
INTERESTS IN THE VAN BUREN TERMINAL
ARTICLE I
DEFINITIONS
The following terms shall have the meanings set forth below for all purposes of
this Appendix:
1.1 "Assumed Environmental Liabilities" has the meaning specified in Section
7.4.
1.2 "Affiliate" has the meaning specified in the Pipeline Purchase and Sale
Agreement.
1.3 "Authorized Representative" means any employee, agent, representative,
consultant, contractor, or subcontractor.
1.4 "Baseline Condition" has the meaning specified in Section 7.2.
1.5 "Books and Records" has the meaning specified in Section 2.1(e).
1.6 "Bottoms" has the meaning specified in Section 2.4(a).
1.7 "BS&W" means bottom sediment and water.
1.8 "Buyer" means Buckeye Pipe Line Transportation LLC, a Delaware limited
liability company or its permitted assignee.
1.9 "Casualty" has the meaning specified in Section 14.1(a).
1.10 "CERCLA" means the Comprehensive Environmental Response, Compensation, and
Liability Act (42 U.S.C. Section 9601 et seq.).
1.11 "Closing" has the meaning specified in Section 4.1.
1.12 "Closing Date" has the meaning specified in the Pipeline Purchase and Sale
Agreement.
1.13 "Condemnation" has the meaning specified in Section 14.1(b).
1.14 "Damages" means any and all obligations, liabilities, damages (including,
without limitation, physical damage to real or personal property or
natural resources), fines, liens, penalties, deficiencies, losses,
judgments, settlements, personal
injuries (including, without limitation, injuries or death arising from
exposure to Regulated Substances), costs and expenses (including, without
limitation, accountants' fees, attorneys' fees, fees of engineers, health,
safety, environmental and other outside consultants and investigators, and
reasonable court costs, appellate costs, and bonding fees), whether based
in tort, contract or any local, state or federal law, common law, statute,
ordinance or regulation, whether legal or equitable, past, present or
future, ascertained or unascertained, known or unknown, suspected or
unsuspected, absolute or contingent, liquidated or unliquidated, choate or
inchoate or otherwise.
1.15 "Effective Date" means the date the Pipeline Purchase and Sale Agreement
is effective.
1.16 "EMOC" means ExxonMobil Oil Corporation.
1.17 "Environmental Condition" means the existence of Regulated Substances in
or on the soil, surface water, or groundwater at, on or under the
Terminal, or migrating from the Terminal to a contiguous property or
properties to the extent the levels of any such Regulated Substances
exceed naturally occurring background levels in such areas.
1.18 "Environmental Documents" means those documents that are in Seller's
possession and that are (1) to the best of Seller's Knowledge, material
with respect to Environmental Conditions at the Terminal and (2) listed on
Schedule 7.2.
1.19 "Environmental Law" or "Environmental Laws" means any and all applicable
common law, statutes and regulations, of the State of New York and local
and county areas concerning the environment, preservation or reclamation
of natural resources, natural resource damages, human health and safety,
prevention or control of spills or pollution, or the management
(including, without limitation, generation, treatment, storage,
transportation, arrangement for transport, disposal, arrangement for
disposal, or other handling), Release or threatened Release of
Regulated Substances, including without limitation, CERCLA, the Hazardous
Material Transportation Authorization Act of 1994 (49 U.S.C. Section 5101
et seq.), the Solid Waste Disposal Act (42 U.S.C. Section 6901 et seq.)
(including the Resource Conservation and Recovery Act of 1976, as
amended), the Clean Water Act (33 U.S.C. Section 1251 et seq.), the Oil
Pollution Act of 1990 (33 U.S.C. Section 2701 et seq.), the Clean Air Act
(42 U.S.C. Section 7401 et seq.), the Toxic Substances Control Act (15
U.S.C. Section 2601 et seq.), the Safe Drinking Water Act (42 U.S.C.
Section 300(f) et seq.), the Emergency Planning and Right-To-Know Act of
1986 (42 U.S.C. Section 11101 et seq.), the Endangered Species Act of 1973
(16 U.S.C. Section 1531 et seq.), the Lead-Based Paint Exposure Reduction
Act (15 U.S.C. Section 2681 et seq.), and the National Environmental
Policy Act of 1969 (42 U.S.C. Section 4321 et seq.), and all State of New
York, county and local laws of a similar nature to federal law, and the
rules and regulations promulgated thereunder, each as amended and, unless
otherwise provided in this Appendix, in effect as of the Closing Date.
1.20 "Environmental Liabilities" means any Damages or Proceedings (whether
incurred, existing or first occurring on, before or after the Closing
Date) relating to or arising out of ownership or operation of the Terminal
(whether on, before or after the Closing Date) pursuant to any applicable
Environmental Laws as in effect at any time, including without limitation:
(i) any Third Party Environmental Claim; (ii) any Governmental
Environmental Enforcement Action; (iii) any Remediation Activities; or
(iv) any liability for an Environmental Condition arising under the terms
of the Terminal Operating Agreement.
1.21 "Environmental Permits" shall mean those permits, authorizations,
approvals, registrations, certificates, orders, waivers, variances or
other approvals and licenses issued by or required to be filed with any
Governmental Authority under any applicable Environmental Law that are in
the name of Seller, related solely to the Terminal, and shown on Exhibit
R.
1.22 "Feasibility Study Period" has the meaning specified in Section 7.1.
1.23 "Governmental Authority" or "Governmental Authorities" means any federal,
state or local governmental authority, administrative agency, regulatory
body, board, commission, judicial body or other body having jurisdiction
over the matter.
1.24 "Governmental Environmental Enforcement Action" means any order,
settlement agreement, consent decree, directive, notice of violation,
notice of enforcement, letter of notice, notice of noncompliance,
corrective action, or similar type of legal requirement or instrument that
is issued by, entered into with, or otherwise required by a Governmental
Authority with respect to an actual or alleged noncompliance under
applicable Environmental Laws.
1.25 "Hess" means the Amerada Hess Corporation.
1.26 "Improvements" has the meaning specified in Section 2.1(b).
1.27 "Interim Period Event" has the meaning specified in Section 7.2.1.
1.28 "Indemnitee" has the meaning specified in Section 9.5(a).
1.29 "Indemnitor" has the meaning specified in Section 9.5(a).
1.30 "Linefill" has the meaning specified in Section 2.4(a).
1.31 "Material Contracts" means all material contracts to which Seller or one
of its Affiliates is a party relating solely to the Terminal, which
contracts are described in Exhibit E. The term "Material Contracts" does
not include any Revenue Generating Contracts.
1.32 "Off-Site" means those areas contiguous to the Real Property to be
conveyed under this Appendix and not considered On-Site.
1.33 "Off-Site Disposal Activities" means any off-site transportation, storage,
disposal, or treatment, or any arrangement for off-site transportation,
storage, disposal, or treatment of any Regulated Substance; provided
however, that the term "Off-Site Disposal Activities" shall not include
(i) the Off-Site portion of an Environmental Condition that has migrated
from the Terminal, (ii) Environmental Conditions on
Off-Site contiguous property under terminal dock lines and dock facilities
at the Terminal, if any, and (iii) Environmental Conditions of waterways
extending beyond the Terminal's shoreline, if any.
1.34 "Off-Site Remediation Activities" means any Remediation Activities with
respect to the Terminal that relate to Off-Site Disposal Activities.
1.35 "On-Site" means any of the Real Property to be conveyed under this Article
2.
1.36 "Order" means any current judgment, order, settlement agreement, writ,
injunction or decree of any Governmental Authority having jurisdiction
over the matter and still in effect as of the Closing Date.
1.37 "Permits" has the meaning specified in Section 2.1(g).
1.38 "Permitted Title Exceptions" has the meaning specified in Section 5.4.
1.39 "Personal Property" has the meaning specified in Section 2.1(d).
1.40 "Pipeline Purchase and Sale Agreement" means the Purchase and Sale
Agreement - Pipeline System between Buyer and Seller dated January 21,
2005 to which this Appendix I is attached.
1.41 "Proceedings" means any actions, causes of action, written demands,
written claims, suits, investigations, and any appeals therefrom.
1.42 "Products" has the meaning specified in Section 2.4(a).
1.43 "Real Property" has the meaning specified in Section 2.1(a).
1.44 "Reasonable Written Notification" means written notice provided within
thirty (30) days of any notice of an alleged claim being received from a
third party in writing by the party seeking indemnity, but in any event
prior to the date any formal response to such claim is required. Such
written notice shall describe in reasonable detail the nature of the
Damages and Proceedings for which indemnification and defense is sought.
Notice of any Third Party Environmental Claim or Governmental
Environmental Enforcement Action shall include, at a minimum, a copy of
the notice received from the Third Party or the Governmental
Authority, respectively. Furthermore, if a Party receives notice from a
Governmental Authority relating to a matter that may ultimately lead to a
settlement agreement, consent decree, or supplemental environmental
project, then Reasonable Written Notification shall be provided on the
basis of such first notice, and not delayed until receipt of the ultimate
settlement agreement, consent decree or supplemental environmental
project.
1.45 "Regulated Substance" means any (a) chemical, substance, material, or
waste that is designated, classified, or regulated as "industrial waste,"
"hazardous waste," "hazardous material," "hazardous substance," "toxic
substance," or words of similar import, under any applicable Environmental
Law; (b) petroleum, petroleum hydrocarbons, petroleum products, petroleum
substances, crude oil, and components, fractions, derivatives, or
by-products thereof; (c) asbestos or asbestos-containing material
(regardless of whether in a friable or non-friable condition), or
polychlorinated biphenyls; and (d) substance that, whether by its nature
or its use, is subject to regulation under any applicable Environmental
Law in effect at that time or for which a Governmental Authority requires
Remediation Activities with respect to the Terminal.
1.46 "Release" shall have the meaning specified in CERCLA; provided, however,
that, to the extent the Environmental Laws in effect at any time after the
Closing Date establish a meaning for "Release" that is broader than that
specified in CERCLA, such broader meaning shall apply to any "Release"
occurring after Closing.
1.47 "Remediation Activities" means any investigation, study, assessment,
testing, monitoring, containment, removal, disposal, closure, corrective
action, remediation (regardless of whether active or passive), natural
attenuation, bioremediation, response, cleanup or abatement, whether
On-Site or Off-Site, of an Environmental Condition to standards required
by applicable Environmental Laws in effect at such
time or as required by an appropriate Governmental Authority for property
used for continued bulk petroleum storage and distribution.
1.48 "Retained Environmental Liabilities" has the meaning specified in Section
7.3.
1.49 "Revenue Generating Contracts" means all contracts to which Seller or one
of its Affiliates is a party relating to the Terminal and pursuant to
which Seller generates income or revenue from a third party, including,
without limitation, terminaling or throughput agreements and exchange
agreements, more particularly described in Exhibit T.
1.50 "Seller" means Mobil Pipe Line Company, a Delaware corporation.
1.51 "Seller's Knowledge" means the knowledge of Seller's current supervisory
employees who, in the normal scope of their employment would have
knowledge of the matter.
1.52 "Sunset Date" has the meaning specified in Section 7.7(b).
1.53 "Survey" means an ALTA land title survey.
1.54 "Taxes" means all taxes and similar governmental charges, imposts, levies,
fees and assessments, however denominated, including interest, penalties
or additions to any such tax that may become payable with respect thereto,
whether disputed or not.
1.55 "Terminal" has the meaning specified in Section 2.1.
1.56 "Terminal Inventory" has the meaning specified in Section 2.4(a).
1.57 "Terminal Operating Agreement" means the Terminal Operating Agreement for
the Terminal among Mobil Oil Corporation, Hess and Seller dated November
___, 1997.
1.58 "Third Party" means any individual or legal business entity other than:
(i) a Party; (ii) a Party's Affiliates; (iii) a Party's Authorized
Representatives; (iv) employees, officers, directors, agents and
representatives and all successors of a Party and its Affiliates; and, (v)
a Party's permitted assigns.
1.59 "Third Party Environmental Claim" means a Proceeding by any Third Party
(except Hess prior top the Sunset Date) alleging Damages relating to or
arising out of exposure to, or Off-Site migration of, a Regulated
Substance (including, without limitation, Damages for Proceedings arising
under applicable Environmental Laws in connection with an Environmental
Condition and Damages for Remediation Activities undertaken by a Third
Party at its property). Notwithstanding anything to the contrary in this
Appendix, to the extent that Remediation Activities are required by
Governmental Entities as a result of a Third Party Environmental Claim,
such Remediation Activities shall be governed by the provisions under this
Appendix dealing with Remediation Activities.
1.60 "Title Commitment" has the meaning specified in Section 11.1.
1.61 "Title Company" means First American Title Insurance Company or any other
nationally recognized title insurance company selected by Buyer and
reasonably approved by Seller.
1.62 "Title Cure Period" has the meaning specified in Section 11.3.
1.63 "Title Objections" means any liens, encumbrances, claims or exceptions
that, in Buyer's reasonable judgement are unacceptable.
ARTICLE II
TERMINALS
2.1 TERMINAL. On the terms and subject to the conditions of this Appendix,
at the Closing, Buyer shall purchase and receive from Seller, and Seller shall
sell, convey and deliver to Buyer, free and clear of any and all liens
(including, but not limited to, federal, state and local tax liens), pledges and
other encumbrances except for Permitted Title Exceptions, all of Seller's right,
title and interest in and to the following, which taken together shall
constitute the "Terminal":
(a) Seller's 50% undivided interest as tenant in common in the real
property described in Exhibit A (the "Real Property");
(b) The improvements located on the Real Property, including, but
not limited to, above-ground and underground piping, buildings, underground and
above-ground storage tanks, generic additive system, fixtures, facilities and
appurtenances, and any of Seller's equipment at the Real Property that Buyer
will require to conduct Remediation Activities after Closing, including but not
limited to monitoring wells, all as described on Exhibit B (the "Improvements"),
but excluding the improvements described in Section 2.2 and in Exhibits C and G;
(c) All transferable appurtenances, rights, privileges, easements,
and licenses benefiting or pertaining to the Real Property;
(d) All supplies, spare parts, tools, drawings, plats, files,
equipment, furniture, and other property used solely in connection with the
Terminal, including: (i) any of Seller's equipment that Seller has used to
conduct Remediation Activities at the Terminal prior to Closing, including but
not limited to monitoring wells, and (ii) those items listed on Exhibit C (the
"Personal Property");
(e) The historical books and records relating to the Terminal's
operations that are specified in Exhibit D (the "Books and Records"), including,
but not limited to, manuals, and any documents on Exhibit D that are stored or
maintained in electronic storage format, such as computer disks or tapes;
(f) All Material Contracts (and all of Seller's rights and
obligations thereunder) in accordance with Section 2.5 to the extent such
contracts are assignable, to the extent assigned and assumed under the
Assignment and Assumption of Permits and Contracts to be executed by the Parties
at Closing (the form of which is attached as Exhibit N); and
(g) The Environmental Permits and all other permits, licenses,
registrations, certificates, consents, orders, notices, approvals or similar
rights from any Government Authority that are necessary to the operation or
ownership of the Terminal, as described on Exhibit F (the "Permits"), to the
extent any of the above are assignable or transferable as indicated on Exhibit
F.
2.2 EXCLUSIONS. The transactions covered by this Appendix consist only of
the sale of assets, and not the sale of a business. The Terminal excludes the
following assets:
(a) Intercompany accounts and contracts of Seller or its Affiliates;
(b) Cash or bank accounts of Seller or its Affiliates;
(c) Defenses and claims that Seller or its Affiliates could assert
against third parties (except to the extent that such defenses and claims relate
to liabilities that Buyer is assuming);
(d) Accounts and notes receivable;
(e) Accounts payable;
(f) Trademarks, service marks, logos, insignia, imprints, brand
identifications, advertising and trade names of Seller or its Affiliates;
(g) The items listed on Exhibit C;
(h) The improvements, equipment or goods located at the Terminal
that are not owned by Seller, which are listed on Exhibit G;
(i) Any insurance coverage under any insurance policies that
relate to the Terminal, or any part of the Terminal, and any rights under such
insurance policies, whether such policies benefit Seller, or any Affiliate of
Seller, or any other person or entity, and whether such insurance policies are
underwritten by one or more of Seller's Affiliates, or an unaffiliated third
party. Any and all such policies that, but for the Closing, would have insured
the Terminal, or any part of the Terminal, are deemed to be terminated, commuted
and cancelled as of the moment of Closing;
(j) Any books and records other than those listed on Exhibit D;
(k) Anything else that is stated in this Appendix as remaining the
property or responsibility of Seller, its Affiliates or any third party;
(l) Any other property that is owned by Seller or its Affiliates and
not used in connection with the Terminal;
(m) Seller's liabilities, if any, under the litigation described on
Schedule 5.5; and
(n) Any labor, employment, or collective bargaining agreements
between Seller and its employees, or between an Affiliate of Seller and such
Affiliate's employees, or any employee benefit plans of Seller or its
Affiliates.
2.3 DISCLAIMER. Buyer acknowledges that it has examined the Terminal,
independently and personally. EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT,
THE TERMINAL SHALL BE SOLD BY SELLER AND ACCEPTED BY BUYER "AS IS, WHERE IS,"
WITH ALL FAULTS KNOWN AND UNKNOWN, WITH NO REPRESENTATIONS OR WARRANTIES
WHATSOEVER, EXPRESS OR IMPLIED, OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, CONDITION, DESIGN, OPERATION, CAPACITY OR OTHERWISE. NOTWITHSTANDING
ANY PROVISION OF THIS AGREEMENT, SELLER MAKES NO REPRESENTATIONS OR WARRANTIES
WITH RESPECT OR RELATED TO BUYER'S INTENDED OR ACTUAL USE OF THE TERMINAL AFTER
CLOSING. IN ADDITION, AND NOT BY WAY OF LIMITATION, SELLER MAKES NO
REPRESENTATION OR WARRANTY WITH RESPECT TO THE QUALITY, ACCURACY OR COMPLETENESS
OF ANY OPERATING MANUALS COVEYED AS PART OF THE TERMINAL'S BOOKS AND RECORDS.
BUYER'S SUBSEQUENT USE OF SUCH MANUALS WILL BE AT BUYER'S OWN RISK AND BUYER
RELEASES SELLER FROM ANY LOSS, LIABILITY, OR DAMAGE ARISING FROM, ASSOCIATED
WITH, OR RELATED TO BUYER'S USE OF SUCH MANUALS. Within ninety (90) days after
Closing, Buyer shall convert the Terminal's OPA 90 Plan, Marine Operator Manual,
and SPCC Plan to its company name, and shall make any operational changes to
such plans as Buyer in its discretion deems necessary or desirable. Seller will
not be responsible for cleaning tanks or removing tank bottoms, including water,
sludge, and sediment for tanks that are in service or idle as of the Closing
Date, or prior to or after the Closing Date. At Closing, Seller shall execute a
bill of sale in favor of Buyer, in substantially the form set forth on Exhibit I
conveying Seller's interest in any improvements, fixtures, equipment and
personal property included in the Terminal, which bills of sale shall contain
special warranties of title and the "AS IS, WHERE IS" provision contained in
this Section 2.3.
2.4 INVENTORIES.
(a) Seller shall close or cause to be closed the Terminal to all
receipts and deliveries of product at 12:00 midnight on the Closing Date.
Beginning at 12:01 a.m. on the Closing Date, the Parties, or their Authorized
Representatives, shall identify, calculate or measure for the Terminal all
contents located (i) in above-ground Terminal storage tanks, and (ii) in the
Terminal linefill, all of which contents are hereinafter called the "Terminal
Inventory." The calculation of the Terminal Inventory shall be recorded using
the following categories of items: (A) all volumes of BS&W as measured by hand
gauge lines; (B) as measured by hand gauge lines, all volumes of petroleum
products in above-ground storage tanks minus those products calculated as
Bottoms in accordance with subsection 2.4(a)(C) ("Products"); (C) as determined
by minimum tank operating levels established by the Terminal using certified
tank strapping charts, all volumes of products below one of the following two
points, whichever is physically higher ("Bottoms"): (i) that point where loading
rack or critical transfer pumps lose suction, OR (ii) if so equipped, that point
of the tank where the support legs, at low setting, of an internal floating pan
are just clear of striking the tank bottom; (D) all volumes of products in
pipelines and other piping at the Terminal ("Linefill"); and (E) all volumes of
generic additives. The volumes of petroleum products measured shall be adjusted
to 60 degrees Fahrenheit and, as indicated by the separate measurement of BS&W,
shall exclude any water. Buyer, or Buyer's Authorized Representatives, shall
have the right to observe and agree to the identification, calculation and
measurement of the Terminal Inventory at the Terminal.
(b) At Closing, EMOC shall transfer or cause to be transferred
custody of the Products and Bottoms for the Terminal to Buyer or to Hess, as the
operator of the Terminal in event EOC has executed a throughput agreement with
Hess for the Terminal and shall transfer title to and custody of the Terminal's
BS&W, Linefill and generic additive to Buyer.
(c) At Closing, title to all Products and Bottoms for the Terminal
shall remain with EMOC, its Affiliates or a Third Party or Parties identified by
Seller.
(d) At Closing, EMOC shall apportion the Product and Bottoms at the
Terminal among EMOC, its Affiliates and Hess, as the operator of the Terminal.
The amounts of Products and Bottoms for the Terminal apportioned to EMOC shall
be carried by EMOC as its opening balance of Products under the throughput
agreements (for EMOC's Products) for the Terminal, dated as of the Closing Date,
to be executed between Buyer and EMOC, and between Hess and EMOC. EMOC shall
indemnify, discharge and hold Buyer harmless from any claim by any person (other
than Hess) that such person has title to any Product at the Terminal as of the
Closing.
(e) At Closing, in addition to the Purchase Price, Buyer shall
purchase from EMOC with respect to the Terminal:
(i) the Linefill for a price based on the monthly average
(for the calendar month preceding the month of the
Closing Date, excluding weekends and holidays) as
reported in Platts Oilgram Price Report for Platt's New
York Harbor Spot Barge Mid for the applicable product
grade, plus the value related to the following items:
- Buckeye Pipe Line tariff from Linden, NJ origin to
terminal destination;
- Line loss allowance of 4.62 cents per barrel; and
- New York State Spill Tax,
and EMOC shall transfer or cause to be transferred
custody thereof and title thereto to Buyer.
(ii) all volumes of generic additive owned by Seller as of
the Closing for a price of $4.80 per gallon and Seller
shall transfer or cause to be transferred custody
thereof and title thereto to Buyer.
Within two business days after Closing, Seller shall invoice Buyer for the
Linefill and generic additive as determined by the pricing formula set forth in
this Section 2.4(e). Buyer shall pay such invoice within ten (10) business days
after receiving such invoice.
(f) At Closing, title to any party's proprietary additives, if any,
shall remain with such party, although custody thereof will transfer to Buyer at
Closing.
2.5 TERMINAL OPERATING AGREEMENT. In accordance with the Assignment and
Assumption of Permits and Contracts, Buyer shall (i) assume all obligations and
liabilities of Seller, as "Owner" under and as defined in the Terminal Operating
Agreement, whether arising before or after the Closing, (ii) assume all
obligations and liabilities of EMOC, as "Operator" under and as defined in the
Terminal Operating Agreement arising prior to the Closing, and (iii) release
Seller and EMOC from all obligations and liabilities assumed by Buyer under
clause (i) and (ii) above, except to the extent Seller has agreed to remain
liable for such obligations and liabilities under the terms of Article 7 of this
Appendix.
ARTICLE III
PURCHASE PRICE
3.1 PURCHASE PRICE. The total monetary consideration to be paid by Buyer
to Seller for the Terminal is included in the Pipeline Purchase and Sale
Agreement, plus all taxes and fees applicable to bulk sales of petroleum
products.
ARTICLE IV
THE CLOSING
4.1 TIME AND PLACE. Subject to any extensions of the Closing Date under
Section 11.3, to satisfaction of the conditions set forth in Article VIII and
the provisions of Section 14(a) of the Pipeline Purchase and Sale Agreement, the
closing of the transaction contemplated hereby (the "Closing") shall be held at
the Closing Date.
4.2 SELLER'S DELIVERIES. At the Closing, Seller shall deliver to Buyer the
following:
(a) Special Warranty Deed, or other documents of title as may be
required under applicable law, for Seller's interest in the Real Property for
the Terminal, in the form attached as Exhibit H, executed and acknowledged by
Seller;
(b) Bill of Sale for Seller's interest in the Improvements and the
Personal Property for the Terminal, in the form attached as Exhibit I, executed
by Seller;
(c) Possession of Seller's interest in the Terminal;
(d) Counterparts executed by Seller of those agreements required by
the provisions of Section 4.4;
(e) Certified copies of appropriate corporate action by Seller
authorizing the transactions contemplated by this Appendix and authorizing the
person(s) executing the documents listed in this Section 4.2 and Section 4.4 to
enter into this Appendix and such other documents on behalf of Seller;
(f) A copy of the executed Indemnity Letter to the Title Company, in
the form attached as Exhibit J, if Seller elects under Section 5.4 to deliver
such letter to the Title Company;
(g) Such affidavits and certificates as the Title Company may
reasonably require, including certificates necessary to delete standard title
insurance exceptions and to protect Buyer against claims that may give rise to
any mechanic's, materialman's or other liens against the Real Property related
to Seller;
(h) A certificate or affidavit certifying that the representations
and warranties made by Seller in this Appendix are true and correct in all
material respects as of the Closing Date;
(i) A fully executed Release Agreement for the Terminal in the form
of Exhibit S;
(j) All consents or waivers received by Seller from Third Parties;
and
(k) Such other instruments and documents of conveyance and transfer,
in form reasonably satisfactory to Buyer and its counsel, as shall be necessary
and effective to transfer
to and assign to Buyer all of Seller's right, title and interest in and to the
Terminal in accordance with Section 2.1.
4.3 BUYER'S DELIVERIES. At the Closing, Buyer shall deliver to Seller, or
effect the delivery to Seller of, the following:
(a) Counterparts executed by Buyer of all those agreements required
by the provisions of Section 4.4;
(b) Certified copies of appropriate corporate action by Buyer
authorizing the transactions contemplated by this Appendix and authorizing the
person(s) executing the documents listed in this Section 4.3 and Section 4.4 to
enter into this Appendix and such other documents on behalf of Buyer;
(c) A certificate or affidavit certifying that the representations
and warranties made by Buyer in this Appendix are true and correct in all
material respects as of the Closing Date;
(d) A fully executed Release Agreement for the Terminal in the form
of Exhibit S; and
(e) Such other instruments and documents, in form reasonably
satisfactory to Seller and its counsel, as shall be necessary and effective to
transfer to and assign to Buyer all of Seller's right, title and interest in and
to the Terminal in accordance with Section 2.
4.4 AGREEMENTS. The following agreements shall be entered into between
Seller and Buyer on the Closing Date:
(a) Assignment and Assumption of Permits (Including Environmental
Permits) and Contracts for the Terminal in the form of Exhibit N; and
(b) Joint Letter Transferring Responsibility for Remediation
Activities for the Terminal in the form of Exhibit Q.
4.5 EFFECTIVENESS OF AGREEMENTS. No agreement described in Section 4.4
shall be effective prior to Closing.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Buyer as follows:
5.1 INTENTIONALLY OMITTED.
5.2 INTENTIONALLY OMITTED.
5.3 INTENTIONALLY OMITTED.
5.4 TITLE TO PROPERTIES. Except as specified in Schedule 5.4, Seller has,
and on the Closing Date will have, good, marketable and indefeasible title to
Seller's 50% interest in the Terminal. At Closing, Seller will convey its
interest in the Terminal to Buyer free and clear of all mortgages, liens
(including federal, state and local tax liens), claims, judgments, assessments,
charges, pledges, security interests and other encumbrances, subject only to the
following items (collectively, the "Permitted Title Exceptions"):
(a) Those matters specified in Schedule 5.4;
(b) Any tax, materialmen's and/or mechanic's lien against which
Seller elects to indemnify the Title Company by delivering to Title Company an
Indemnity Letter in the form of Exhibit J at Closing;
(c) Such other matters as do not interfere in any material respect
with the ownership, use, occupancy or operations of Buyer upon the Real Property
as used in the normal course on the Closing Date; and
(d) Any other matters approved in writing by Buyer.
5.5 LITIGATION. Except as set forth in Schedule 5.5, (i) there is no suit,
action, claim, arbitration, administrative or legal or other proceeding or
governmental investigation pending or, to Seller's Knowledge, threatened against
Seller related to the Terminal, and (ii) there are no facts or events which
could give rise to a claim against Seller by Hess related to the Terminal.
Except as set forth in Schedule 5.5, there is no Order in effect relating
specifically to the Terminal.
5.6 CONDEMNATION AND ZONING. There is no condemnation or eminent domain
proceeding pending or, to Seller's Knowledge, threatened against the Terminal by
publication or other writing, nor is there any Proceeding pending or, to
Seller's Knowledge, threatened by publication or other writing, which could
materially adversely affect the zoning classification of the Terminal in effect
as of the date hereof.
5.7 PERMITS. Exhibits F and R list all material Permits and Environmental
Permits in effect with respect to the Terminal on the date of the Pipeline
Purchase and Sale Agreement. Except as disclosed on Exhibits F and R, to
Seller's Knowledge, neither Seller nor its Affiliates has received any notice of
any claim or default relating to the Permits or Environmental Permits. To
Seller's Knowledge, all material Permits and Environmental Permits are valid and
in full force and effect and the permit holder is in compliance in all material
respects therewith.
5.8 CONDITION OF TERMINAL. Seller has continued to or has continued to
cause its Affiliates to maintain and operate the Terminal in the ordinary course
of its business, and will continue to do so until Closing.
5.9 MATERIAL CONTRACTS. Seller has delivered to Buyer true and correct
copies of all Material Contracts. The Material Contracts have not been modified
except as provided in amendments delivered to Buyer. Neither Seller nor, to
Seller's Knowledge, any other party to the Material Contracts, is in breach or
default thereunder. Except as disclosed in Exhibit E, under the terms of the
Material Contracts, the Material Contracts may be assigned to and assumed by
Buyer without penalty or expense.
5.10 COMPLIANCE WITH LAWS. Except (a) to the extent, if any, disclosed on
Schedule 5.10 or in the Environmental Documents, (b) as to any matter with
respect to which Seller has agreed to be responsible for or indemnify Buyer in
Article VII, and (c) as to any matter relating to, arising out of, or resulting
in Remediation Activities at the Terminal, to Seller's Knowledge, Seller's
ownership, use and operation of the Terminal as of the Closing Date will be in
compliance in all material respects with all applicable federal, state and local
laws, rules, regulations and orders (including but not limited to, all
applicable Environmental Laws) in effect and requiring
compliance as of the Closing Date and Seller has not received notice from any
Government Authority asserting any act of non-compliance.
5.11 CONSENTS. Except as set forth on Schedule 5.11, no consent or
approval from or filing with any Third Party is required in connection with the
execution and performance by Seller of the transactions contemplated hereby, and
there are no options or other preferential purchase rights held by any person or
entity not a party hereto to purchase or acquire any interest in the Terminal.
5.12 TAXES. Seller has paid prior to the Closing Date all Taxes due and
payable on or before the Closing Date assessed against the Terminal or Terminal
Inventory for all taxable years or taxable periods prior to the Closing Date
(including portions of taxable years or periods with respect to which Taxes are
due and payable on or before the Closing Date).
ARTICLE VI
INTENTIONALLY OMITTED
ARTICLE VII
ENVIRONMENTAL
7.1 FEASIBILITY STUDY PERIOD. Prior to the date of the Pipeline Purchase
and Sale Agreement Seller has made available to Buyer and its Authorized
Representatives the Environmental Documents, Orders, and Environmental Permits.
Seller has provided Buyer with timely, reasonable access to Seller's Authorized
Representatives with knowledge of any relevant facts relating to the
Environmental Documents, the Environmental Conditions, or the Remediation
Activities. Seller has provided Buyer and its Authorized Representatives access
to the Real Property prior to the signing of this document to inspect and to
survey the Real Property and conduct Buyer's due diligence investigations of the
Terminal ("Feasibility Study Period"). Seller has provided Buyer and its
Authorized Representatives reasonable access during normal
business hours to the Terminal to conduct such activities during the Feasibility
Study Period, subject to Seller's policies and regulations regarding safety and
security.
7.2 ENVIRONMENTAL DOCUMENTS. In order to establish the environmental
status of the Terminal, Seller, Buyer and its Authorized Representatives have
reviewed or acknowledged the existence of the Environmental Documents, which
include the results of all tests conducted by Buyer and its Authorized
Representatives under Section 7.1, if any. Seller and Buyer have agreed that
Schedule 7.2 includes or references all material information, known to exist by
either Party, related to, affecting or concerning the Environmental Condition or
status of the Terminal as of the Closing Date and that such information shall
constitute the "Baseline Condition" of the Terminal. Seller shall not be
responsible for any Environmental Condition whether or not identified as part of
the Baseline Condition.
7.2.1 INTERIM PERIOD EVENT. If on or after the Effective Date and before
the Closing, a new Release occurs which creates an Environmental Condition (an
"Interim Period Event") such that (i) the levels of any Regulated Substance in
or on the soil, surface water, or groundwater at, on or under any of the
Terminals, or migrating from any of the Terminals to a contiguous property or
properties are increased to levels which exceed those permitted by any
applicable Governmental Authority to exist without Remediation Activity being
required and/or (ii) for any areas at any Terminal where Remediation Activities
are either being performed or are planned to be performed, the levels of any
Regulated Substance in or on the soil, surface water, or groundwater at, on or
under any of the Terminals, or migrating from any of the Terminals to a
contiguous property or properties are increased to levels which materially
increases the cost of further Remediation Activities, the Parties agree to meet
to discuss a reduction to the amount to be paid for Seller's interest in the
Terminal as set forth in the Pipeline Purchase and Sale Agreement based on the
estimated costs associated with the Interim Period Event. Each Party agrees to
provide to the other a good faith estimate of such costs. If the Parties, in the
exercise of their sole discretion, cannot agree on such a reduction that is
mutually acceptable to both Parties on or before the date sixty (60) days after
the date of the Interim Period Event, each Party
shall have the right, in its sole discretion, to terminate this Agreement upon
written notice to the other Party, without penalty. In the event that an Interim
Period Event occurs and the Parties agree to proceed to Closing, the Closing
Date may be extended for a period up to the date sixty (60) days after the
Interim Period Event. Any Release caused by the activities of or on behalf of
Buyer prior to the Closing Date shall not be deemed an Interim Period Event, and
shall not invoke the provisions of this Section 7.2.1.
7.3 SELLER'S RETAINED ENVIRONMENTAL LIABILITIES. Seller shall retain and
be solely responsible for the following matters (collectively, "Retained
Environmental Liabilities):
(a) Environmental Liabilities in connection with Off-Site Disposal
Activities performed by Seller prior to the Closing Date;
(b) Environmental Liabilities in connection with any Governmental
Environmental Enforcement Action (but expressly excluding any Remediation
Activities required thereunder) that: (i) is related to the operations of the
Terminal prior to the Closing Date; (ii) is issued or required by or entered
into with a Governmental Authority before the Sunset Date, but in either case,
only to the extent Seller and/or its Affiliates would otherwise be liable under
the terms of the Terminal Operating Agreement; and
(c) Environmental Liabilities in connection with any Third Party
Environmental Claims (but expressly excluding any Remediation Activities
required thereunder) that: (i) are related to or arise out of ownership or
operation of the Terminal prior to the Closing Date; and (ii) are made by a
Third Party before the Sunset Date but in either case, only to the extent Seller
and/or its Affiliates would otherwise be liable under the terms of the Terminal
Operating Agreement.
7.4 BUYER'S ASSUMED ENVIRONMENTAL LIABILITIES . Except for Seller's
Retained Environmental Liabilities, Buyer shall assume and be solely responsible
for all Environmental Liabilities relating to or arising out of the Terminal,
whether existing or asserted before, on, or after the Closing Date, whether
known or unknown, whether based on past, present, or future conditions or
events, including but not limited to undertaking such Remediation Activities of
the Environmental Conditions as may be required by applicable laws, regulations,
or government
orders ("Assumed Environmental Liabilities"). After the Sunset Date, except to
the extent related to Off-Site Disposal Activities performed by Seller prior to
the Closing, Buyer's Assumed Environmental Liabilities shall also include the
following:
(a) Environmental Liabilities in connection with any Governmental
Environmental Enforcement Action that: is (i) related to the ownership or
operation of the Terminal prior to the Closing Date; and (ii) is issued or
required by or entered into with a Governmental Authority after the Sunset Date;
and
(b) Environmental Liabilities in connection with any Third Party
Environmental Claims that: (i) are related to or arise out of the ownership or
operation of the Terminal prior to the Closing Date; and (ii) are made by a
Third Party after the Sunset Date.
7.5 SELLER'S ENVIRONMENTAL INDEMNITY. For purposes of this Section 7.6,
where Buyer is the indemnified party, the term "Buyer" shall include Buyer and
its Affiliates and the directors, officers, employees, agents and
representatives, and all successors and assigns of the foregoing. Seller shall
indemnify, hold harmless and defend Buyer from and against any Damages and
Proceedings asserted against or incurred by Buyer prior to the Sunset Date
relating to or arising out of the Retained Environmental Liabilities; provided,
however, that Seller's obligations under this Section 7.5 with respect to
Environmental Liabilities in connection with Off-Site Disposal Activities
performed prior to the Closing Date shall not be limited by and shall survive
beyond the Sunset Date. Seller shall have no indemnification or defense
obligation for any Damages and Proceedings asserted against or incurred by Buyer
relating to or arising out of the Retained Environmental Liabilities for which
Seller has not received Reasonable Written Notification from Buyer.
Buyer shall make available all relevant existing information that, based
on information and belief formed after reasonable inquiry, are known to Buyer to
be in the possession or control of Buyer and provide timely, reasonable access
to all personnel of Buyer with knowledge of relevant facts, and shall cooperate
in all reasonable respects with Seller in connection with Seller's defense of
any Third Party Environmental Claim or Governmental Environmental Enforcement
Action under this Section 7.5. Seller shall have no indemnification or defense
obligation for any Damages and Proceedings asserted against or incurred by Buyer
relating to or arising out of such Third Party Environmental Claim or
Governmental Environmental Enforcement Action if Buyer unreasonably denies
Seller such access.
Seller shall have no liability, indemnity or defense obligation for any
Damages or Proceedings asserted against or incurred by Buyer subsequent to any
change in all or any part of the Terminal to a residential use, or other change
in use of all or any part of the Terminal that results in a materially adverse
change in Seller's risk exposure hereunder.
7.6 BUYER'S ENVIRONMENTAL INDEMNITIES. For purposes of this Section 7.6, where
Seller is the indemnified party, the term "Seller" shall include Seller and its
Affiliates and the directors, officers, employees, agents and representatives,
and all successors and assigns of the foregoing. From and after the Closing
Date, Buyer shall indemnify, hold harmless and defend Seller from and against
any Damages and Proceedings asserted against or incurred by Seller relating to
or arising out of the Assumed Environmental Liabilities, including:
(a) Any Environmental Liabilities, except for Seller's Retained
Environmental Liabilities;
(b) Any Release of any Regulated Substance related to operations of
the Terminal occurring on or after the Closing Date;
(c) Remediation of any Environmental Condition at the Terminal or
any areas Off-Site on or after the Closing Date;
(d) Any Off-Site Disposal Activities or Off-Site Remediation
Activities resulting from the ownership or operation of the Terminal at or after
the Closing:
(e) Any Third Party Environmental Claim related to or arising out of
the ownership or operation of the Terminal on or after the Closing Date;
(f) Any Governmental Environmental Enforcement Action that is taken
against Seller or its Affiliates that is issued or required by or entered into
with a Governmental Authority
on or after the Closing Date to the extent relating to post-Closing ownership or
operation of the Terminal;
(g) Exacerbation of any Environmental Condition (whether resulting
in On-Site or Off-Site impacts) by Buyer or its Authorized Representatives
(which for purposes of this Section 7.6 shall include its tenants, customers,
invitees, licensees, or any users of the Terminal (except Seller));
(h) Failure to comply with any Permit or Order, including
transferred or assigned Environmental Permits or Orders identified on Exhibits F
and R by Buyer or its Authorized Representatives;
(i) On the Sunset Date, in addition to the indemnity obligation
under Section 7.6(d), except with respect to any Off-Site Disposal Activities
performed prior to the Closing Date, Buyer shall also indemnify Seller for all
Environmental Liabilities in connection with any Third Party Environmental
Claims, including without limitation, any Third Party Environmental Claim made
by Hess, that: (i) are related to or arise out of ownership or operation of the
Terminal prior to the Closing Date; and (ii) are made by a Third Party after the
Sunset Date; and
(j) On the Sunset Date, in addition to the indemnity obligation
under Section 7.6(e), Buyer shall also indemnify Seller for all Environmental
Liabilities in connection with any Governmental Environmental Enforcement Action
that: (i) is related to ownership or operation of the Terminal prior to the
Closing Date; and (ii) is issued or required by or entered into with a
Governmental Authority after the Sunset Date. Buyer's indemnity obligations
under this Section 7.6 will be set forth in the Special Warranty Deed conveying
the Real Property, will be a covenant running with the land, and will bind the
successors, heirs and assigns of Buyer.
7.7 BUYER'S RELEASE OF SELLER FOR ENVIRONMENTAL LIABILITIES.
(a) Except for Seller's Retained Environmental Liabilities, Buyer, in
consideration of the negotiated amount paid by Buyer for the Terminal and other
assets, hereby unconditionally, completely and forever releases and discharges
Seller, its Affiliates, and employees, officers,
directors, agents and representatives and all successors and assigns of the
foregoing, from all Environmental Liabilities. On the Closing Date, Buyer shall
unconditionally, completely, and forever discharge Seller, its Affiliates,
employees, officers, directors, agents and representatives, and all successors
of the foregoing and the permitted assigns of Seller, from any obligation by
Seller to perform or ensure the performance of any Remediation Activities under
this Appendix (but excluding any Remediation Activities related to pre-Closing
Off-Site Disposal Activities). On the Closing Date, Buyer shall execute and
deliver to Seller the Release Agreement in the form of Exhibit S-1.
(b) On the occurrence of the tenth (10th) anniversary after the Closing
Date ("Sunset Date"), Buyer shall unconditionally, completely, and forever
discharge Seller, its Affiliates, employees, officers, directors, agents and
representatives, and all successors of the foregoing and the permitted assigns
of Seller, from all remaining Environmental Liabilities, except to the extent
such Environmental Liabilities relate to or arise from Seller's pre-Closing
Off-Site Disposal Activities. On the Sunset Date, Buyer shall execute and
deliver to Seller a Release Agreement in the form of Exhibit S-2.
7.8 SELLER'S ACCESS TO THE TERMINAL. Upon request by Seller in connection
with any written request or demand from any Governmental Authority, Buyer shall,
at no cost to Seller, permit Seller, its Affiliates, and its Authorized
Representatives reasonable access to the Terminal. Seller, its Affiliates or
Authorized Representatives shall provide forty-eight (48) hours written notice
to Buyer for any routine access by Seller or its Affiliates or Authorized
Representatives. Seller will provide thirty (30) days written notice to Buyer
for any access that Seller believes may result in a material impact to Buyer's
operations. Seller will make reasonable efforts to minimize impacts on Buyer's
operations. The Buyer's obligations will be set forth in the Special Warranty
Deeds conveying the Real Property and will be a covenant running with the land
and will bind the successors and assigns of Buyer.
Upon written request by Seller, in connection with any request to Seller
from any Governmental Authority, Buyer shall provide Seller copies of all
reports, correspondence, notices
and communications sent or received from Governmental Authorities regarding the
Environmental Condition of the Terminal or any remediation and/or investigation
at the Terminal related to the Baseline Condition or other copies of all
reports, correspondence, notices and communications sent to or received from
third parties concerning conditions that would obligate (financially or
otherwise) Seller.
7.9 OTHER ENVIRONMENTAL ISSUES.
(a) Buyer acknowledges that the Terminal has been used for the
storage, disposal, sale, and transfer of petroleum products or derivatives and
Seller hereby advises Buyer that (i) releases of such products into the soil
have occurred from time to time in the past; and (ii) the Terminal has
contaminated subsurface conditions. Any warranty, covenant or provision in the
applicable Deed from Seller to Buyer with respect to the Terminal does not, nor
will it be deemed to, extend or apply to any release or presence of petroleum
products, derivatives, or any other type of contaminant on, in, under, or about
the Terminal including, but not limited to, the surface area, size, and location
of such substances and/or the description of the types of contaminants contained
therein. As part of the consideration for the sale of the Terminal, Buyer for
itself, its successors and permitted assigns, covenants and agrees that neither
the Real Property nor any part thereof shall at any time be used for any of the
following specifically listed facilities or uses, or any similar facility or
use: residential, child care, nursery school, preschool, or any other
educational facility, place of worship, playground, hotel, motel, inn, bed and
breakfast or rooming house, nursing home, rehabilitation center, hospital or
community center and that the installation of any water wells for drinking or
irrigation purposes along with the construction of basements is prohibited; that
these covenants and agreements shall survive the Closing; that these covenants
and agreements are to run with the Real Property; that these restrictive
measures will be inserted in the Special Warranty Deed to be delivered at the
Closing and that similar restrictive covenants shall be inserted in any deed,
lease or other instrument conveying or demising any of the Real Property or any
part thereof. Furthermore, Buyer for itself, its successors and permitted
assigns
agrees to execute any documents required by any Governmental Authority having
jurisdiction over the Terminal that are consistent with the above use
restrictions.
(b) The terms and provisions of this Appendix, and all test
information, reports and other materials concerning the environmental or other
condition of the Terminal shall be maintained by Buyer and its Authorized
Representatives as confidential, other than any such information (i) that is in
the public domain through a source other than Buyer, or (ii) that is compelled
in any judicial, administrative, regulatory or arbitration proceeding or
otherwise required by law or by a governmental authority. Buyer may, however,
share environmental information under a comparable confidentiality agreement
with any affiliated companies, potential subsequent purchasers of the Terminal
or a potential joint venture owner of the Terminal.
(c) If Closing does not occur within the time required by this
Appendix, or upon earlier termination of the Pipeline Purchase and Sale
Agreement, upon Seller's request, Buyer shall promptly deliver to Seller all
originals and copies (whether written or electronic) that are in Buyer's or its
Authorized Representatives' possession of the information, reports, or materials
including specifically those concerning the environmental or other condition of
the Terminal together with all information, reports, or material furnished to
Buyer by Seller, and Buyer shall promptly cause third parties to deliver to
Seller such materials that are in their possession.
(d) The Environmental Documents, including those generated by Buyer,
may be used by Seller to prepare and file reports, where applicable, with the
appropriate Governmental Authorities.
(e) Seller's responsibilities in this Article VII shall inure to the
benefit of Buyer solely and do not transfer to Buyer's heirs and assigns. In the
event Seller agrees to the transfer and assignment of Seller's responsibilities
in this Article VII, which agreement shall only be effective if provided in
writing by Seller, Buyer's obligations under this Article VII shall be
incorporated into any lease or subsequent sales agreement for the Terminal and
any tenant or subsequent buyer shall be required to fulfill all obligations of
Buyer set forth in this Article VII. In no event shall Buyer's obligations under
this Article VII terminate upon the lease or sale of all or a
portion of the Terminal. Any attempt to assign Seller's responsibilities in this
Article VII without the express prior written approval of Seller as set forth
above shall be void and of no effect.
(f) Buyer and Seller shall cooperate with each other in all
reasonable respects as to the transfer or assignment of the Environmental
Permits or Orders that can be transferred or assigned under applicable
Environmental Laws and the making of any filings or notifications or obtaining
any authorizations required under applicable Environmental Laws in connection
with the transfer of the Terminal to Buyer. Seller shall take the lead on all
initial notifications to applicable Governmental Authorities requesting such
transfer or assignment of any Environmental Permits or Orders. Buyer, however,
shall be solely responsible for all subsequent communications and filings needed
to follow through and complete the timely transfer or assignment of such
Environmental Permits or Orders. If the assignment of any Environmental Permit
is denied by the applicable Governmental Authority, Exhibit R of this Appendix
will be deemed automatically amended, and Buyer shall apply for the issuance of
a new Environmental Permit as soon as reasonably possible. With respect to any
Environmental Permits or Orders issued under applicable Environmental Laws prior
to the Closing Date and Buyer's obligations for Remediation Activities, Seller
and Buyer, within ten (10) calendar days after the Closing Date shall submit
joint letters to each applicable Governmental Authority acknowledging that Buyer
is assuming the obligations of Seller under such Order and/or Remediation
Activities, such letters to be in the form of Exhibit Q. Along with the joint
letters and with respect to obligations for Remediation Activities set forth in
such joint letters that Buyer is assuming, Buyer shall also execute and deliver
to Seller a Release Agreement for remediation liability for all Environmental
Conditions in the form of Exhibit S. In the event that Buyer does not execute
and deliver to Seller the Release Agreement in the form attached hereto as
Exhibit S within 30 days of Seller's request therefor, then Seller shall be
authorized as Buyer's agent and attorney in fact to execute such Release
Agreement in Buyer's name and to bind Buyer to the terms thereof.
(h) As between Buyer and Seller, Buyer and Seller shall share
equally in all filing costs and administrative expenses associated with such
transfer or assignment of any
Environmental Permits or Orders pursuant to this Appendix. Buyer, however, shall
be solely responsible for all costs and expenses relating to or arising out of
any change in terms or conditions of such Environmental Permits or Orders
resulting from any transfer, assignment or reissuance of such Environmental
Permits or Orders to Buyer, except for any such costs and expenses related to or
arising out of Seller's non-compliance with such Environmental Permits or
Orders. With respect to those Environmental Permits or Orders that cannot be
transferred or assigned under applicable Environmental Laws, Buyer will use
reasonable efforts at Buyer's cost and expense to obtain new permits or orders.
(i) After the Closing Date, Buyer shall be solely responsible for
the filing of any post-Closing reports or notices required by any Governmental
Authority regardless of whether the reporting period began or occurred prior to
the Closing Date (as long as the required submission deadline for such reports
or notices is not prior to the Closing Date). Such reports may include, but are
not limited to, Annual Air Emissions Report, Air Permit reports (excluding Title
V semi-annual and annual certifications, which are addressed below), SARA 313
Form R Reports, annual hazardous waste reports, gasoline maximum achievable
control technology (GMACT) certifications and ground water monitoring reports
required under state above ground storage tank regulations. At least 10 days
prior to the Closing Date, Seller will provide Buyer with a listing of all such
material reports and notices required to be filed with any Governmental
Authority that are due within sixty (60) days after the Closing Date. Within
thirty (30) days after the Closing Date, for the Terminal Seller shall provide
to Buyer records relating to operation of the Terminal through the Closing Date
needed to complete all such material reports. As to any information that must be
provided to any Governmental Authority as part of a routine report submitted in
relation to a Title V semi-annual or annual certification, if the Closing Date
occurs during the required reporting period, each Party agrees to be responsible
and liable for the collection, compilation and submission of such certification
with respect to that portion of the reporting period falling under such Party's
ownership. Each Party shall cooperate fully with the other and shall provide the
other Party with reasonable access to its employees and files to the extent
necessary or
appropriate to assist the other Party in preparing its report. In the event that
the Closing Date occurs on or after the end of the required reporting period but
before such report is due for the Terminal, Seller will be responsible and
liable for the collection, compilation and submission of such report as it
concerns Seller's operation of the Terminal. In that instance, Buyer shall
cooperate fully with Seller and shall provide Seller with reasonable access to
Buyer's employees and files to the extent necessary or appropriate to assist
Seller in preparing the report. Buyer shall be solely responsible and liable for
all subsequently submitted reports.
7.10 ARBITRATION PROCEDURES. Except as otherwise provided herein, any
dispute between the Parties under this Article VII shall be resolved by
arbitration in Fairfax, Virginia in accordance with the rules of the American
Arbitration Association and subject to the provisions of this Section 7.10.
(a) If good faith efforts to resolve any such dispute fail, either
Party may commence arbitration after thirty (30) days written notice of that
Party's intent to commence arbitration. Seller shall appoint one arbitrator and
Buyer shall appoint one arbitrator. The two arbitrators so appointed shall
select a third arbitrator. All arbitrators for non-engineering disputes must be
licensed attorneys. If either Seller or Buyer fails to appoint an arbitrator
within twenty (20) days after a request for such an appointment is made by the
other Party in writing, or if the arbitrators so appointed fail within twenty
(20) days after the appointment of the second of them to agree on a third
arbitrator, the arbitrator or arbitrators necessary to complete a panel of three
arbitrators shall be appointed by the American Arbitration Association upon
application thereto by either Party.
(b) The panel so constituted shall fix a reasonable time and place
for a hearing of the dispute. Each of the Parties shall submit to the panel of
arbitrators at the hearing such party's proposed resolution of the dispute,
together with such supporting evidence as such Party may desire to present to
the panel of arbitrators. The panel of arbitrators shall consider only the
proposed resolutions and evidence as presented by the Parties.
(c) Within thirty (30) days of such hearing, the panel of
arbitrators shall select the proposed resolution presented by a Party that most
closely achieves the intention of the parties as expressed in this Article VII.
The Panel must choose either the resolution of the dispute proposed by Buyer or
the resolution of the dispute proposed by Seller. The panel of arbitrators is
not empowered to select a compromise of any kind between either proposal. If
more than one dispute is between the arbitrators at any one time, the
arbitrators shall resolve each such dispute independently of the other dispute.
(d) The action of a majority of the members of the panel of
arbitrators shall govern and their decision in writing shall be final and
binding on the Parties.
(e) All arbitrators appointed under this procedure shall be
disinterested individuals who are not and never have been officers, directors,
employees, consultants, or attorneys of Seller or of Buyer or of any of Seller's
or Buyer's Affiliates. Such individuals must be experienced in the environmental
aspects of the petroleum and chemical industries and competent to pass judgment
on the issues in dispute. The losing Party shall bear all reasonable and
customary fees and expenses (Seller's and Buyer's) of the entire arbitration
process.
7.11 ENVIRONMENTAL NOTICES. Except as otherwise stated in this Article
VII, all notices or correspondence required or permitted to be given under this
Article VII shall be in writing. Notices may be given in person, or may be sent
by nationally-recognized overnight courier, registered or certified mail
(postage prepaid and return receipt requested) or facsimile with written
confirmation to the party to be notified at the following address:
If to Seller: ExxonMobil Oil Corporation c/o Exxon Mobil Corporation
Global Remediation
Attn:Gerard T. Smith
Technical Consultant - Acquisitions/Trades/Sales
3225 Gallows Road
Fairfax, VA 22037
703/846-5988 Telephone
703/846-5257 Facsimile
If to Buyer: Buckeye Terminals, LLC
Attn:Stephen C. Muther
5 Radnor Corporate Center, Suite 500
100 Matsonford Road
Radnor, Pennsylvania 19087
610/254-4640 Telephone
610-254-4625 Facsimile
Either Party may change its address or facsimile number by providing written
notice to the other at least ten (10) days prior to the effective date of such
change. Notices given in accordance with this Article VII shall concern only
those matters governed by this Article VII. Notices given in accordance with
this Section 7.11 shall be deemed to have been given: (a) at the time of
delivery when delivered personally; (b) upon receipt when sent by
nationally-recognized overnight courier, registered or certified mail (postage
prepaid and return receipt requested); or (c) upon completion of successful
transmission when sent by facsimile (unless transmission is completed outside
recipient's normal working hours, in which case such notice shall be deemed
given at the start of recipient's next business day). Any notice required or
permitted to be given under any other Article of this Appendix shall be
separated from Article VII notices, and shall be given in accordance with the
Pipeline Purchase and Sale Agreement.
ARTICLE VIII
CONDITIONS PRECEDENT TO CLOSING
8.1 OBLIGATION OF BUYER TO CLOSE. The obligation of Buyer to consummate
the purchase of the Terminal on the Closing Date is subject to: (i) the
satisfaction of the following conditions on or prior to the Closing Date and/or
(ii) Buyer's written waiver of any such conditions as remain unsatisfied as of
the Closing Date:
(a) REQUIRED CONSENTS. The Parties shall have obtained the consent
(if required) of any applicable Government Authority to the assignment to and
the assumption by Buyer of any assignable Permit and Environmental Permit, and
the novation of all Material Contracts, under which Buyer assumes Seller's
rights and obligations and Seller is released from any and all such obligations;
(b) DEFECTS IN TITLE. Any Title Objections shall be resolved in
accordance with the provisions of Section 11.2, and Buyer shall not have
terminated this Pipeline Purchase and Sale Agreement under Section 11.2;
(c) TITLE COMMITMENT. Buyer shall have received the Title Commitment
described in Section 11.1; and
(d) NO ORDER OR PROCEEDING. No Order by any Government Authority,
threat by any Government Authority which is evidenced in writing, or Proceeding
which in all reasonable likelihood might prohibit or render illegal Seller's
consummation of the transactions contemplated hereby shall be in effect.
8.2 OBLIGATION OF SELLER TO CLOSE. The obligation of Seller to consummate
the sale of the Terminal on the Closing Date shall be subject to: (i) the
satisfaction of the following conditions on or prior to the Closing Date and/or
(ii) Seller's written waiver of any such conditions as remain unsatisfied as of
the Closing Date:
(a) REQUIRED CONSENTS. The Parties shall have obtained the consent
(if required) of any applicable Government Authority to the assignment to and
the assumption by Buyer of any assignable Permit and Environmental Permit, and
the novation of all Material Contracts, under which Buyer assumes Seller's
rights and obligations and Seller is released from any and all such obligations;
and
(b) NO ORDER OR PROCEEDING. No Order by any Government Authority,
threat by any Government Authority which is evidenced in writing, or Proceeding
which in all reasonable likelihood might prohibit or render illegal Seller's
consummation of the transactions contemplated hereby shall be in effect.
ARTICLE IX
INDEMNIFICATION
9.1 DEFINITIONS. As used in this Article IX, "LOSS" shall mean any claim,
liability, obligation, expense, cost or other damage or loss (including without
limitation, reasonable attorneys' and consultants' fees), fine or penalty.
"Loss" shall also include in each instance, but
shall not be limited to, all reasonable costs and expenses of investigating and
defending any claim or any order, directive, final judgment, compromise,
settlement, fine, penalty, court costs or proceeding arising at any time under
or from any Government Authority, including all reasonable costs and expenses
and court costs incurred in the enforcement of rights under this Article IX.
"Loss" shall not include any special, consequential, indirect or loss of profit
damages or any Loss for which one Party has assumed responsibility or agreed to
indemnify the other Party under Article VII of this Appendix.
9.2 INDEMNIFICATION BY SELLER. From the Closing Date, in addition to all
other obligations of Seller to Buyer set forth in this Appendix, Seller shall
indemnify, defend and hold harmless Buyer, Buyer's Affiliates and their
respective directors, officers, employees, representatives, successors and
assigns from and against any Loss resulting from, related to, or arising out of
the breach by Seller (or any shareholder, officer, director, employee of Seller)
of any representation, warranty or covenant contained in this Appendix, in any
Exhibit or Schedule to this Appendix, or in any document, instrument, agreement
or certificate delivered under this Appendix; provided that Seller shall have no
indemnification obligation for any such Loss if Seller has not received a claim
from Buyer (specifying in reasonable detail the basis for such Loss) within one
year following the Closing Date.
9.3 INDEMNIFICATION BY BUYER. From and after the Closing Date, in addition
to all other obligations of Buyer to Seller set forth in this Appendix, Buyer
shall indemnify, defend and hold harmless Seller, Seller's Affiliates and their
respective directors, officers, employees, representatives, successors and
assigns from and against any Loss resulting from, related to, or arising out of:
(a) Buyer's ownership or operation of all or any part of the
Terminal after Closing, including without limitation, any Loss arising under the
Terminal Operating Agreement, except for any Loss for which Seller has assumed
responsibility or agreed to indemnify Buyer under Article VII, Article IX or
elsewhere in this Appendix; or
(b) Any liability or obligation of Seller or EMOC arising under the
Terminal Operating Agreement prior to the Closing Date, except for any Loss for
which Seller has assumed responsibility or agreed to indemnify Buyer under
Article VII, Article IX or elsewhere in this Appendix; or
(c) The breach by Buyer or any Affiliate of Buyer (or any
shareholder, officer, director, employee of Buyer or such Affiliate) of any
representation, warranty or covenant contained in this Appendix, in any Exhibit
or Schedule to this Appendix, or in any document, instrument, agreement or
certificate delivered under this Appendix; provided that Buyer shall have no
indemnification obligation for any such Loss arising from a breach of any
representation, warranty or covenant as set forth in this clause (c) if Buyer
has not received a claim from Seller (specifying in reasonable detail the basis
for such Loss) within one year following the Closing Date.
9.4 CONFLICT. In the event of any conflict or ambiguity in the language of
this Article IX, or any other portion of this Appendix, with the language of
Article VII, the Parties agree that Article VII language shall be controlling.
9.5 PROCEDURES.
(a) NOTICE AND TENDER. In the event that any officer or registered
agent of either Party hereto receives actual notice of any written claim by a
third person giving rise to a right of indemnification of such Party under this
Article IX (the "Indemnitee"), such Indemnitee shall, within sixty (60) days
after receipt of such notice, give written notice thereof to the other Party
hereto responsible for such indemnification (the "Indemnitor") setting forth the
facts and circumstances giving rise to such claim for indemnification and shall
tender the defense of such claim to the Indemnitor. If the Indemnitee fails to
give such notice and tender such defense within such 60-day period, the
Indemnitee shall be solely responsible for any Loss with respect to such claim
to the extent they are attributable to such failure; but failure to give such
notice and tender such defense within such 60-day period shall not result in a
forfeiture or waiver of any rights to
indemnification for any Loss with respect to such claim to the extent they are
not attributable to such failure.
(b) DEFENSE OF CLAIMS. The Indemnitor shall select (subject to the
Indemnitee's reasonable approval) the attorneys to defend any matter subject to
indemnification and/or taking all actions necessary or appropriate to resolve,
defend, and/or settle such matters, and shall be entitled to contest, on its own
behalf and on the Indemnitee's behalf, the existence or amount of any
obligation, cost, expense, debt or liability giving rise to such claim. Nothing
in this Section 9.5(b) should be construed as prohibiting the Indemnitee from
participating in the defense (which may include hiring its own counsel) in any
matter subject to indemnification, as long as the Indemnitee does so at its own
expense. The Indemnitor shall keep the Indemnitee fully and timely informed as
to actions taken on such matters. The Indemnitee shall cooperate fully with the
Indemnitor and its counsel and shall provide them reasonable access to the
Indemnitee's employees, consultants, agents, attorneys, accountants, and files
to the extent necessary or appropriate to defend or resolve the matter, with the
Indemnitor reimbursing the Indemnitee with respect to the cost of any such
access. With respect to any matter for which a Party has an indemnification
and/or defense obligation under this Appendix, the Parties shall maintain a
joint defense privilege, where applicable, in connection with such matters for
the Party's post-Closing communications and those of their respective Affiliates
and Authorized Representatives, which post-Closing communications concern the
matters subject to such indemnification and/or defense obligation.
(c) ALLOCATION OF INDEMNIFICATION LIABILITY. When any Loss for which
indemnification is provided under this Article IX results from, relates to, or
arises out of the conduct of both Seller and Buyer, the Parties shall indemnify
each other in proportion to their respective share of such Loss.
ARTICLE X
SURVIVAL
10.1 REPRESENTATIONS AND WARRANTIES. All representations and warranties
made in this Appendix, in any Exhibit or Schedule to this Appendix, or in any
document, instrument, agreement or certificate delivered under this Appendix
will survive until one year after Closing. At the end of such survival period
set forth above, such representations and warranties shall terminate and have no
further force and effect.
10.2 COVENANTS. Unless otherwise specified in this Appendix, the Parties
obligations under the following sections and articles will survive the Closing
of this transaction and delivery of the deed: Articles I, VII, IX, X, XII, XIII
and XV, Sections 2.4 (d) and (e), 2.5, 3.1 and 11.3.
ARTICLE XI
TITLE COMMITMENT; SURVEY; RISK OF LOSS
11.1 TITLE INSURANCE. Buyer will furnish and pay the premium for standard
title insurance policies issued by the Title Company in an amount equal to the
portion of the purchase price in the Pipeline Purchase and Sale Agreement that
is allocated to the Real Property and Improvements, naming Buyer as the proposed
insured. Subject to Permitted Title Exceptions, Seller shall deliver to Buyer at
the Closing title insurable by the Title Company at standard rates without
special exceptions or conditions. Any abstracting, title certification, and
charges for title examination will be at Buyer's expense. Buyer shall cause the
Title Company to deliver to Buyer, with a copy to Seller, a title commitment for
the Terminal setting forth the status of title to the Terminal on or before the
thirtieth (30th) day following the Effective Date (the "Title Commitment").
11.2 SURVEY. Buyer shall cause to be prepared at its expense a current
Survey for the Terminal, by a duly licensed land surveyor and professional
engineer satisfactory to the Title Company. The Survey shall be completed within
thirty (30) days after the Effective Date. Upon
completion of the Survey, Buyer shall deliver promptly three (3) prints thereof
to Seller, and at least one (1) print to the Title Company. The Survey will (i)
show the location of all streets, roads, railroads, creeks or other water
courses, fences, easements, rights-of-way and other encumbrances or
encroachments on or adjacent to the Terminal, including all of the title matters
shown on the Title Commitment and (ii) set forth a certified legal description
of the Real Property.
11.3 TITLE OBJECTIONS. Within fifteen (15) days after receiving the later
of the Title Commitment or the Survey for the Terminal, Buyer shall notify
Seller if the Title Commitment or Survey for that Survey reveals any Title
Objections. If Seller is unable or unwilling to cure any Title Objections,
Seller will provide written notice thereof to Buyer within fifteen (15) days
following receipt of notice of Title Objections from Buyer and Buyer shall have
the right, at its option, by written notice to Seller within fifteen (15) days
following receipt of Seller's written notice, either (i) to terminate the
Pipeline Purchase and Sale Agreement in accordance with the terms thereof and
obtain from Seller 50% of the cost of the Survey for the Terminal, whereafter
both Parties shall be relieved and discharged of any rights, liabilities or
obligations hereunder, or (ii) to waive such defect and proceed to Closing.
Buyer's failure to exercise the right to terminate within the said fifteen (15)
day period shall constitute a waiver of Buyer's right to terminate with respect
to such title matters. However, if Seller elects to cure the Title Objections
(although Seller will have no such obligation to do so), Seller shall provide
Buyer with notice of its intention to cure same within the fifteen (15) days
aforesaid and Seller shall have an opportunity, at its expense, to remove such
Title Objections within sixty (60) days following receipt of written notice from
Buyer identifying the Title Objections (the "Title Cure Period"). In no event
shall Seller have any obligation to commence litigation or to incur costs in
excess of One Thousand Dollars ($1,000.00) to cure or remove any Title
Objections. If Seller is unable to cure any Title Objections within the Title
Cure Period that, in the reasonable opinion of the Title Company or Buyer, must
be cured in order to deliver good and marketable title, Buyer may, as its sole
and exclusive remedy, and upon written notice to Seller within fifteen (15) days
after expiration of the Title Cure Period, elect either to (i) terminate the
Pipeline Purchase and Sale Agreement in
accordance with the terms thereof and obtain from Seller 50% of the cost of the
Survey, whereafter both Parties shall be relieved and discharged of any rights,
liabilities or obligations hereunder, or (ii) to waive such defect and any other
obligation under this Appendix of Seller to deliver good and marketable title
with respect to such defect and proceed to Closing.
11.4 RISK OF LOSS. Risk of loss with respect to the Terminal shall be
borne by Seller until Closing. The risk of loss of the Terminal shall pass to
the Buyer at Closing.
ARTICLE XII
FURTHER ASSURANCE
From time to time after Closing, Seller and Buyer shall, upon request of
the other and without further consideration, execute, acknowledge and deliver
such further instruments of transfer, conveyance or assumption and such other
documents as Seller or Buyer may reasonably request more effectively to vest in
Buyer the right and title to, interest in and enjoyment of, the Terminal or to
carry out the transactions and agreements contemplated by this Appendix.
ARTICLE XIII
COSTS AND EXPENSES
13.1 BROKERAGE COMMISSIONS. Neither of the Parties nor, where applicable,
any of their respective shareholders, officers, directors, or employees, has
employed or will employ any broker, agent, finder or consultant or has incurred
or will incur any liability for any brokerage fees, commissions, finders' fees
or other fees in connection with the negotiation or consummation of the
transactions contemplated by this Appendix.
13.2 CLOSING ADJUSTMENTS. The following items shall be paid, prorated, or
adjusted as of the Closing Date in the manner hereinafter set forth:
(a) All real estate Taxes, as well as Taxes assessed on Terminal
Inventory, due and owing on or before the Closing Date, all penalties and
interest thereon, and all special
assessments affecting the Terminal, whether payable in installments or not,
shall be paid in full by Seller.
(b) Current real estate Taxes, assessments and charges for the
Terminal shall be prorated as of the Closing Date upon the tax year of the
applicable taxing authority, without regard to when said Taxes are payable, so
that the portion of current Taxes allocable to the period from the beginning of
such year to the Closing Date shall be the responsibility of Seller and the
portion of the current Taxes allocable to the portion of such year from the
Closing Date to the end of such year shall be the responsibility of Buyer. These
Taxes will be prorated based on the current assessed value for 2004. A
post-closing adjustment will be made to reflect accurately Seller's
responsibility for that portion of real estate Taxes attributable to the period
prior to the Closing Date, and Buyer's responsibility for that portion of real
estate Taxes attributable to the period following the Closing Date. The
post-closing adjustment will be made upon receipt by Buyer of the relevant tax
bill from the appropriate Governmental Authorities, but no later than one year
following the Closing Date. Any post-closing adjustment proposed by Buyer will
be supported by copies of said tax bills along with other reasonable
documentation to be provided to Seller.
(c) Seller shall be responsible for the cost of utilities for the
Terminal up to Closing and Buyer shall be responsible for such costs thereafter.
(d) Buyer shall bear and pay all title insurance premiums and
charges.
(e) Buyer shall bear and pay all realty transfer fees, recording
costs and Taxes associated with the conveyance of the Real Property, the
Improvements and the Personal Property.
(f) Seller and Buyer shall each pay their own respective legal fees
and expenses and the cost of performance of their respective obligations
hereunder.
(g) All amounts due Seller under any assignable Revenue-Generating
Contract shall be prorated as of the Closing Date upon the payment cycle
established under such
Revenue-Generating Contract so that the portion the amounts due Seller from the
beginning of such payment cycle to the Closing Date will be credited to Seller
at Closing.
(h) The Parties shall make all other adjustments necessary to
effectuate the intent of the Parties as set forth in this Appendix.
13.3 TIMING OF ADJUSTMENTS. All monetary adjustments necessary to achieve
the allocations specified in Section 13.2, to the extent reasonably practicable,
shall be made at the Closing. To the extent any such adjustments cannot be made
at the Closing, the same shall be made after the Closing as and when complete
information becomes available. Seller and Buyer agree to cooperate and to use
their best efforts to complete such adjustments no later than thirty (30) days
after the Closing Date.
ARTICLE XIV
CASUALTY AND CONDEMNATION
14.1 NOTICE OF FIRE CASUALTY OR CONDEMNATION. In the event that after the
date of the Pipeline Purchase and Sale Agreement and prior to the Closing:
(a) Any material portion of the Terminal shall be damaged or
destroyed by fire or other casualty (a "Casualty"), or
(b) Seller receives written notice of any action, suit or
proceeding, or threatened or contemplated action, suit or proceeding, to condemn
or take all or any material part of the Terminal by eminent domain (a
"Condemnation"), Seller shall immediately notify Buyer of the Casualty or
Condemnation. In the event of a Casualty, Buyer must (i) retain an insurance
adjuster mutually satisfactory to Buyer and Seller within fifteen (15) days
after Buyer's receipt of Seller's notice to determine the extent of the
Casualty, and (ii) initiate negotiations with Seller to discuss an adjustment to
the purchase price set forth in the Pipeline Purchase and Sale Agreement for the
Terminal if Buyer contemplates making the election in Section 14.2(a) below. If
Buyer initiates such negotiations, Buyer and Seller shall negotiate in good
faith to try to agree upon an adjusted purchase price.
14.2 BUYER'S ELECTION. Buyer must elect one of the following options and
give written notice to Seller of such election within (i) fifteen (15) days
after the insurance adjuster's written determination in the case of a Casualty,
or (ii) thirty (30) days after Buyer's receipt of Seller's notice of
Condemnation in the case of a Condemnation:
(a) Purchase the Terminal in accordance with Article IV of this
Appendix at an adjusted purchase price agreed upon by Buyer and Seller before
Buyer makes this election; or
(b) Terminate the Pipeline Purchase and Sale Agreement in accordance
with the terms thereof.
14.3 EXCLUSIVE REMEDY. Notwithstanding any provision to the contrary
contained herein, the remedies provided to Buyer under Section 14.2(a) and (b)
constitute Buyer's exclusive remedies in connection with the circumstances
described therein.
ARTICLE XV
GENERAL; ADDITIONAL COVENANTS
15.1 EXHIBITS AND SCHEDULES. Each Exhibit and Schedule referred to herein
is incorporated into this Appendix.
15.2 PARTIES IN INTEREST; NO THIRD PARTY BENEFICIARY. This Appendix shall
inure to the benefit of and be binding upon Buyer and Seller and their
respective successors and permitted assigns. Except as otherwise provided
herein, nothing in this Appendix will be construed as conferring upon any person
or entity other than Buyer and Seller, and their respective successors in
interest and permitted assigns, any right, remedy or claim under or by reason of
this Appendix.
15.3 TRANSITION ASSISTANCE. For a period of ninety (90) days after
Closing, at Buyer's reasonable request, Seller shall assist, at no charge, Buyer
in connection with a reasonably orderly transition of the operation of the
Terminal.
15.4 TAXES. After the Closing Date, if Buyer receives a bill for Taxes
assessed against the Terminal or Terminal Inventory that includes Taxes for
taxable years or taxable periods on or before the Closing Date (including Taxes
assessed for portions of taxable years or periods on or before the Closing
Date), Buyer shall pay the bill and invoice Seller for all such Taxes relating
to
periods prior to the Closing Date. Seller shall promptly reimburse Buyer upon
receipt of such invoice. After the Closing Date, if Seller receives a bill for
Taxes assessed against the Terminal or Terminal Inventory that includes Taxes
for taxable years or taxable periods after the Closing Date (including Taxes
assessed for portions of taxable years or taxable periods after the Closing
Date), Seller shall forward the bill to Buyer for payment.
SCHEDULES AND EXHIBITS TO AGREEMENT
In accordance with Item 601(b)(2) of Regulation S-K, the foregoing schedules and
exhibits have been omitted. Buckeye Partners, L.P. agrees to supplementally
furnish a copy of any omitted schedule or exhibits to the SEC upon request.